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Employers'  Liability 
WORKMEN'S  Compensation 

AND 

Liability  Insurance 


THE  DISTINCTION  BETWEEN  THE 
LIABILITY  TO  PAY  COMPENSATION  AND 
THE  LIABILITY  FOR  DAMAGES  FOR  IN- 
JURIES WHICH  ARE  NOT  WITHIN  THE 
COMPENSATION  ACT  OF  NEW  YORK  STATE 


STATE  COMPENSATION  INSURANCE  COMPARED 
WITH  LIABIIvITY  INSURANCE  BY  STOCK 
COMPANIES  AND   MUTUAL  ASSOCIATIONS 


The  Workmen  s  Compensation  Law,  Annotated 

By 

Jeremiah  F.  Connor 

111 

Formerly  Counsel  to  the  State  Workmen's  Compensation 
Commission   and    the    State   Industrial    Com- 
mission of  the  State  of  New  York 


Price  $5.00 


THE  SPECTATOR  COMPANY 

Chicago  Office:  ,  135  William  Street, 

Insurance  Exchange.  NEW  YORK. 


667251 


COPYRIGHT,  1916,  BY 

THE   SPECTATOR  COMPANY, 

NEW  YORK. 


INTRODUCTION 


The  Workmen's  Compensation  Law  of  the  State  of 
New  York  (Chapter  67  of  the  Consolidated  Laws,  as 
enacted  by  Chapter  816  of  the  Laws  of  1913  and  re- 
enacted  by  Chapter  41  of  the  Laws  of  1914,  with  amend- 
ments) made  a  radical  change  in  relation  to  the  liability 
of  employers  for  damages  because  of  accidental  injuries. 
The  result  has  led  to  much  confusion  between  injuries 
which  are  comj^ensatable  and  injuries  which  may  be 
made  the  basis  of  damage  suits. 

Part  I  of  this  work  is  intended  to  relieve  this  con- 
fusion. The  compensation  act  is  explained  and  cases  of 
dual  liability  and  optional  remedies,  as  well  as  cases 
which  are  not  covered  in  any  manner  by  the  compensa- 
tion law,  are  classified  and  supplemented  by  such  annota- 
tions of  authorities  as  are  available. 

Part  II  is  devoted  to  the  subject  of  compensation  and 
liability  insurance.  Here  again  confusion  exists  more 
particularlj'^  in  relation  to  state  insurance  covering  the 
payment  of  compensation.  Nothing  has  been  attempted 
in  this  connection  except  to  show  the  nature  of  this  and 
other  forms  of  insurance,  to  explain  the  so-called  im- 
munity claimed  on  behalf  of  State  Fund  insurance,  and 
to  point  out  that  the  State  Insurance  Fund  is  created 
for  the  purpose  of  insuring  employers  agliinst  the  pay- 
ment of  compensation,  and  under  its  contract  or  insur- 
ance policy,  only  insures  against  compensation  liability. 

Part  III  contains  the  workmen's  compensation  law 
as  amended,  including  the  amendments  made  by  the 
Legislature  of  1916.  It  is  annotated  with  all  decisions 
of  the  Courts  under  the  New  York  act  and  with  decisions 
of  the  Workmen's  Compensation  Commission  and  its 
successor,  the  State  Industrial  Commission.  The  ap-. 
pendix  contains  the  Employers'  Liability  Act  of  New 
York  State,  the  elective  compensation  law,  and  the  pro- 
visions of  the  State  constitution  affecting  the  liability  of 


iv  INTRODUCTION 

the  employers  and  the  rights  of  employees,  together  with 
the  Federal  Employers'  Liability  Act. 

The  author  was  chief  counsel  for  the  State  Work- 
men's Compensation  Commission  of  the  State  of  New 
York  from  the  time  the  compensation  law  became  ef- 
fective, July  1,  1914,  until  this  Commission  was  super- 
seded by  the  State  Industrial  Commission,  June  1,  1915, 
and  was  chief  counsel  for  the  State  Industrial  Commis- 
sion until  January  1,  1916.  During  this  period  of  time, 
the  author  had  complete  charge  of  all  legal  matters  re- 
lating to  the  compensation  law  and  feels  that  he  has  had 
a  part  in  the  growth  and  development  of  the  judicial 
decisions  under  which  the  Act  has  been  interpreted.  It 
has  been  the  aim  of  the  author  to  make  this  volume 
useful  in  the  practical  application  of  compensation  legis- 
lation to  the  liability  of  employers  and  the  rights  of 
employees  both  in  relation  to  compensation  and  to  in- 
juries which  are  not  covered  by  the  compensation  act, 
and  to  explain  in  a  practical  manner  the  distinction 
between  the  different  forms  of  insurance  under  which 
employers  may  give  security  for  the  payment  of 
compensation  and  relieve  themselves  from  further  liabil- 
ity in  cases  which  are  not  the  subject  of  compensation. 

The  distinctions  between  the  different  forms  of  Em- 
ployers' Liability  are  based  to  a  large  extent  upon  the 
law  in  New  York  State.  They  apply  to  the  subject 
generally,  however,  and  especially  to  those  states  having 
compensation  statutes  similar  to  the  New  York  Act. 

The  part  devoted  to  state  insurance  applies  to  all 
states  where  the  State  Insurance  Fund  is  created  to 
operate  in  competition  with  other  forms  of  insurance 
except  insofar  as  the  wording  of  the  statutes  may  be 
different.  The  annotations  to  the  compensation  law 
cover  a  wide  field.  The  cases  passed  upon  by  the  Courts 
include  those  in  which  no  opinions  were  written.  Many 
of  the  decisions  by  the  Commission  are  unreported,  but 
all  will  be  found  useful  in  the  determination  of  claims 
not  only  in  New  York  State  but  also  under  compensa- 
tion statutes  generally. 
May  1,  1916.  Jeremiah  F.  Connor,  Oneida,  N.  Y. 


ABBREVIATIONS. 

NOTE — The  abbreviations  used  in  this  work  refer  to 
the  following  reports,  viz. : 

APP.  DIV.— New  York  Supreme  Court,  Appel- 
late Division. 

ATL.  REP. — Atlantic  Reporter. 

B.  W.  C.  C. — Butterworth^s  Workmen's  Compen- 
sation Cases  (English). 

FED.  REP. — Federal  Reporter. 

MASS. — Masachusetts  Reports. 

N.  E. — Northeastern  Reporter. 

N.  C.  C.  A. — Negligence  and  Compensation  Cases, 
Annotated. 

N.  Y. — New  York  Reports. 

N.  Y.  ST.  DEP.  REP.— New    York    State    De- 
partmental Reports. 

N.  Y.  SUPP. — New  York  Supplement. 

PAC.  REP. — Pacific  Reporter. 

U.  S. — United  States  Supreme  Court  Reports. 

W.  C.  C. — Workmen\s  Compensation  Cases  (Eng- 
lish). 


TABLE    OF    CONTENTS 


PART  I 

WORKMEN'S  COMPENSATION  AS  DISTIN- 
GUISHED FROM  EMPLOYERS' 
LIABILITY 

PAGE 

Sec.    1.     History    of    Compensation    Legislation    in    New 

York 4 

2.  Plan  and  purpose  of  the  Compensation  Law 5 

3.  Employments  subject  to  the  Act 7 

4.  Injuries  subject  to  the  Act 8 

5.  Compensation  and  death  benefits 11 

6.  Employees  not  within  the  Act 12 

7.  Dual  employments 13 

8.  Doubtful  employments 16 

9.  Employments  expressly  exempted 18 

10.  Non-hazardous  employments 20 

11.  Casual  employments    23 

12.  Salesmen    24 

18.     Injuries  resulting  in  disfigurement 26 

14.  Dependents  who  receive  no  compensation 28 

15.  Injuries  received  by  office  employees 29 

16.  Officers  of  corporations 30 

17.  Damages  for  loss  of  services 32 

18.  Occupational  diseases 32 

19.  Injuries  received  outside  the  State 34 

20.  Admiralty  jurisdiction 36 

21.  Admiralty  jurisdiction — Optional  remedy  of  em- 
ployees    38 

22.  The  Federal  Employers'  Liability  Act — Railroad 
Employees 39 

23.  Independent  contractors   43 

24.  Employees  injured  through   negligence  of  third 
persons    45 

vii 


TABLE  OF  CONTENTS 


PART  II 


COMPENSATIOX  AXD  LIABILITY 
INSURANCE 


PAGE 


Sec.  25.     Security  for  payment  of  compensation 61 

"  26.     Self-Insurance 54 

"  27.     Insurance  by  Stock  Companies  and  Mutual  Asso- 
ciations      54 

"  28.     The  State  Insurance  Fund — Coverage 57 

"  29.     State   Insurance   Fund — Release   from  payment 

of  compensation    59 

"  30.     State  Insurance  Fund — Immunity 62 

"  81.     Administration  of  the  State  Insurance  Fund.  . .  65 


PART  III 


The  Workmen's  Compensation  Law,  Annotated 78 

Rules  Adopted  under  the  Compensation  Law 175 

Index  of  Hazardous  Employments 195 


APPENDIX 


Employers'  Liability  Act  and  Elective  Compensation  Law  205 
Railroad  Law,  Section  64 — Injuries  to  railroad  employees  216 
State  Constitution,  Art.  1,  Sec.  19 — authorizing  the  Com- 
pensation Law 218 

State  Constitution,  Art.   1,  Sec.   18 — relating  to  death 

cases 218 

Code  of  Civil  Procedure,  Sec.   1902 — relating  to  death 

cases   219 

Federal  Employers'  Liability  Act 220 


TABLE  OF  CASES  PENDING  IN  UNITED 
STATES  SUPREME  COURT. 

The  following  cases  arising*  under  the  Workmen's 
Compensation  Law  of  the  State  of  New  York  are  pend- 
ing in  the  United  States  Supreme  Court.  The  cases 
had  been  argued  but  had  not  been  decided  at  the  time 
this  work  went  to  press.  They  involve  the  constitu- 
tionality of  the  law  generally  and  its  application  to  in- 
terstate commerce,  including  railroad  employees  and 
employees  of  vessels : 

JENSEN  vs.  SOUTHERN  PACIFIC  CO.,  215  N.  Y.  614. 

WALKER  VS.  CLYDE  S.  S.  CO.,  215  N.  Y.  529. 

WINFIELD  VS.  NEW  YORK  CENTRAL  &  HUDSON  R.  R.  R.  CO.,  168 

APR  DIV.  361;  153  N.  Y.  SUPP.  499;  216  N.  Y.  284. 
WHITE  VS.  NEW  YORK  CENTRAL  &  HUD.  R.  R.  R.  CO.,  216  N.  Y. 

MEMO.  658. 


IX 


PART  I 

workmen's  compensation 

as  distinguished  from 

employp:rs'  liability. 


PART  I 


WORKMEN'S  COMPENSATION  AS  DISTIN- 
GUISHED FROM  EMPLOYERS' 
LIABILITY. 

Sec.  1.     History  of  Compensation  Legislation  in 
New  York. 
"     2.     Plan  and  purpose  of  the  Compensation 
Law. 

3.  Employments  subject  to  the  Act. 

4.  Injuries  subject  to  the  Act. 

5.  Compensation  and  death  benefits. 

6.  Employees  not  within  the  Act. 

7.  Dual  employments. 

8.  Doubtful  employments. 

9.  Employments  expressi-y  exempted. 

10.  Non-hazardous  employments. 

11.  Casual  employments. 

12.  Salesmen. 

13.  Injuries  resulting  in  disfigurement. 

14.  Dependents  who  receive  no  compensation. 

15.  Injuries  received  by  office  employees. 

16.  Officers  of  corporations. 

17.  Damages  for  loss  of  services. 

18.  Occupational  diseases. 

19.  Injuries  received  outside  the  State. 

20.  Admiralty  jurisdiction. 

21.  Admiralty   jurisdiction — Optional    rem- 
edy OF  employees. 

22.  The  Federal  Employers"  Liability  Act — 
Railroad  employees. 

23.  Independent  contractors. 

24.  Empi-oyees  injured  through  negligence 

OF  THIRD  persons. 
3 


WOEKMEN  S  COMPENSATION 


§  1.  History  of  compensation  legislation  in  New 
York.  The  legislature  of  New  York  adopted  a  compul- 
sory compensation  act  in  1910  which  applied  to  certain 
dangerous  emploj^ments.  This  law  was  immediately  at- 
tacked in  the  Courts  upon  the  ground  that  it  authorized 
the  taking  of  property  without  due  process  of  law  in  vio- 
lation of  the  14th  amendment  to  the  Federal  constitution 
and  in  violation  of  Section  6  of  Article  I  of  the  State 
Constitution.  It  was  declared  unconstitutional  by  the 
Court  of  Appeals  in  the  case  of  Ives  vs.  South  Buffalo 
Railway  Co.,  201  N.  Y.  271,  in  January,  1911.  This  de- 
cision was  based  principall}'-  upon  the  provision  of  the 
act  which  imposed  the  payment  of  compensation  upon 
employers  who  had  not  been  guilty  of  any  fault  con- 
tributing to  the  injury.  The  Court  of  Appeals  indi- 
cated that  the  decision  might  have  been  different  had 
the  Act  been  authorized  by  the  State  constitution. 

An  amendment  to  the  constitution  permitting  the  en- 
actment of  a  compulsory  statute  for  the  payment  of 
compensation  without  regard  to  fault  was  adopted  by 
the  people  at  the  general  election  in  1913.  The  present 
compensation  act/  which  is  the  subject  of  this  work,  was 
passed  by  the  Legislature  in  Special  Session  in  1913  and 
was  re-enacted  at  the  regular  session  in  1914.  It  was 
held  not  in  violation  of  the  Federal  constitution  in  Mat- 
ter of  Jensen  vs.  Southern  Pacific  Co.,  215  N.  Y.  514. 

A  provision  was  added  to  the  compensation  law  by 
the  amendments  of  1916,  under  which  employers  who 
are  not  subject  to  the  act  and  their  employees,  may,  by 
joint  election,  become  subject  to  its  provisions.  There 
is  also  in  force  in  the  State  of  New  York  another  elective 
compensation  law,  being  Article  14  of  the  Labor  Law.' 
Only  a  very  few  employers  and  employees  have  ever 
elected  to  come  within  its  provisions.  It  is  now  super- 
seded by  the  amendment  to  the  compulsory  act  at  least 
insofar  as  its  provisions  are  inconsistent  therewith. 

'Chapter  67  of  the  Consolidated  Laws  of  1914;  Chapters  167,  168,  615 

Laws,  being  Chapter  816  of  the  Laws  and  674,  Laws  of  1915,  and  by  Chap- 

of  1918,  as  re-enacted  and  amended  ter  622,  Laws  of  1916. 

by  Chapter  41  of  the  Laws  of  1914,  » Chapter  852,  Laws  of  1910. 
and    as   amended   by   Chapter   816, 


PLAN  AND  PURPOSE  OF  THE  COMPENSATION  LAW  5 

§  2.  Plan  and  purpose  of  the  compensation  law. 
Under  the  general  plan  of  the  compensation  statute, 
employers  are  required  to  pay  or  provide  a  prescribed 
compensation  based  upon  the  earnings  of  the  employee 
for  disability  or  death  due  to  accidental  injuries  arising 
out  of  and  in  the  course  of  certain  enumerated  hazardous 
employments.  The  emplo^^er  has  the  option  of  giving 
security  for  the  payment  of  compensation  by  contribut- 
ing premiums  to  a  State  Insurance  Fund  created  by  the 
Act ;  by  insuring  with  any  stock  corporation,  or  mutual 
association  authorized  to  \^^rite  compensation  insurance, 
or  by  furnishing  satisfactory  proof  to  the  Commission 
of  his  financial  ability  to  pay  compensation  directly  to 
his  employees  without  insuring.  If  he  fails  to  exercise 
either  of  these  options,  he  is  liable  to  a  penalty  equal  to 
the  premium  payable  to  the  State  Fund  and  is  subject 
to  a  suit  for  damages  upon  the  part  of  the  injured  em- 
ployee, or  in  case  of  death,  by  his  legal  representative  or 
dependents,  in  which  he  is  deprived  of  the  defenses  of 
contributory  negligence,  assumed  risk  and  the  negligence 
of  fellow-servants,  and  since  the  amendments  of  1916 
is  guilty  of  a  misdemeanor.  If  he  gives  security  for  the 
payment  of  compensation,  he  is  relieved  from  liability, 
other  than  compensation,  for  personal  injuries  or  death 
sustained  by  employees  who  come  within  the  provisions 
of  the  statute. 

Payment  of  compensation  is  required  without  regard 
to  fault  either  upon  the  part  of  the  employer  or  the  em- 
ployee, except  when  the  injury  is  due  solely  to  the  in- 
toxication of  the  employee  or  is  occasioned  by  his  wilful 
intention  to  bring  about  the  injury  or  death  of  himself 
or  another.  Rules  of  damages  do  not  apply  to  compen- 
sation cases  nor  is  the  determination  of  claims  governed 
by  common  law  or  statutory  rules  of  evidence.  A  Com- 
mission is  created  to  administer  the  Act  and  its  decision 
is  final  upon  all  questions  of  fact.^  As  stated  by  the 
Supreme  Court,  "It  was  the  purpose  of  the  Legislature 
to  create  a  tribunal  to  do  rough  justice — speedy,  sum- 

*  Compensation  Law,  Section  20,  Iron  Works,  167  App.  Div.  526;  158 

Matter    of    Goldstein    vs.    Center     N.  Y.  Supp.  224. 


6  workmen's  compensation 

mary,  informal,  untechnical.'"'  Appeals  may  be  taken 
on  questions  of  law  to  the  Appellate  Division  of  the 
Supreme  Court,  Third  Department.  While  the  de- 
cision of  the  Commission  is  final  upon  questions  of  fact, 
the  Courts  on  appeal  may  examine  and  take  into  account 
the  evidence  adduced,  as  supplementing  the  findings  of 
fact,  and  in  all  cases,  the  correctness  of  the  determina- 
tion of  the  Commission  as  to  the  application  of  the  law 
to  the  injury  upon  which  the  claim  is  based  remains  a 
question  for  judicial  review.^ 

The  purpose  of  the  statute  is  elaborately  explained  in 
the  following  extract  from  the  opinion  written  by 
Supreme  Court  Justice  John  M.  Woodward  in  the  case 
of  Rheinwald  vs.  Builders  Brick  <£■  Supply  Co.,  168  A  pp. 
Div.  425;  153  N.  Y.  Supp.  598: 

"The  Workmen's  Compensation  Law  must  in 
fairness  be  deemed  to  have  been  enacted  in  further- 
ance of  a  legislative  determination,  enforced  by  ex- 
plicit mandate  of  the  people  through  amendment  of 
the  State  constitution,  that  a  new  and  different 
scheme  and  basis  of  indemnity  for  industrial  acci- 
dents should  be  adopted  in  this  State,  in  the  light 
of  the  social  experience  of  other  commonwealths 
and  countries.  Injuries  sustained  by  those  who  per- 
form the  manual  and  mechanical  tasks  of  an  in- 
dustry must  be  deemed  to  have  been  intended  by 
this  statute  to  be  made  a  social  risk,  a  liability  of  the 
industry,  a  charge  upon  the  production  cost  of  the 
article  manufactured  or  the  service  rendered.  Hith- 
erto the  rule  of  our  statute  and  fimdamental  law 
had  been  that  any  right  of  recovery  for  industrial 
accidents  must  arise  from  a  breach  of  the  master's 
duty  as  to  care  and  safeguards,  and  accordingly 
was  limited  by  whatever  contractual  relation  existed 
between  the  person  injured  and  the  person  whose 
breach  of  duty  was  the  efficient  cause  of  injury.  For 
this  historic   concept  of  liability   springing   from 

■  Matter  of  Rhyner  vs.  Huber  Co.,  '  Matter  of  Gleisner  vs.  Gross  & 
171  App.  Div.  71;  156  N.  Y.  Supp.  Hcrbener,  170  App.  Div.  87;  166 
908.  N.  Y.  Supp.  946. 


PLAN  AND  PURPOSE  OF  THE  COMPENSATION  LAW  7 

omission  of  legal  duty  created  by  contractual  rela- 
tion there  has  been  substituted  an  application  of  the 
social  principle  that  regardless  of  duty  and  regard- 
less of  fault,  the  expenses  and  loss  of  earnings  re- 
sultant from  occupational  injury  to  a  workman  en- 
gaged in  carrying  on  an  inherently  hazardous  busi- 
ness or  avocation  of  an  employer  should  be  paid  in 
the  first  instance  by  the  employer  and  by  him  made 
a  charge  against  the  operating  costs  of  the  business. 
In  place  of  the  traditional  juristic  rule  that  the 
master  must  respond  in  damages  when  his  servant  is 
injured  through  the  master's  fault,  and  that  other- 
wise the  servant  must  go  unrecompensed  and  the 
loss  be  borne  by  him  alone,  the  people  and  legis- 
lature have  now  put  in  force  the  changed  concept 
that  the  trade  product  should  be  charged  with  all 
consequences  of  inherent  trade  hazards  and  that 
losses  to  individual  workers  through  disability  while 
engaged  in  the  service  of  the  proprietor  of  the  busi- 
ness, should  be  distributed  among  all  its  consumers 
or  patrons,  rather  than  left  to  operate  ruinously 
against  the  disabled  employee  or  the  solitary  em- 
ployer." 
§  3.     Employments  subject  to  the  Act.     Compensa- 
tion laws  differ  widely  as  to  the  field  of  occupations 
which  are  subject  to  their  provisions.     In  some  states 
the  law  is  general  in  its  terms  and  applies  to  all  employ- 
ments except  those  expressly  exempted.    Most  statutes 
of  this  kind  exempt  farm  laborers,  domestic  servants  and 
casual  employees.    Other  laws  apply  only  to  hazardous 
employments  named  in  the  statute  itself.     The  New 
York  law  is  of  the  latter  class.    Its  application  is  lim- 
ited to  the  hazardous  employment  enumerated  in  Section 
2  and  divided  into  42  groups.    After  June  1,  1916,  any 
employment  can  be  made  subject  to  the  act  by  joint  elec- 
tion of  the  employer  and  his  employees.    An  employer 
under  the  New  York  act  is  one  employing  workmen  in  a 
hazardous  employment  and  an  employee  entitled  to  its 
benefits  is  one  working  in  such  hazardous  employment. 
The  act  is  further  limited  by  the  requirement  that  the 


WORKMEN  S   COMPENSATION 


employment  in  question  must  be  one  which  is  carried  on 
by  the  employer  for  pecuniary  gain,  but  this  limitation 
does  not  apply  to  municipal  employees  after  June  1, 
1916.  Farm  laborers  and  domestic  servants  are  ex- 
empted. 

Generally  speaking,  two  classes  of  emploj^ers  are  sub- 
ject to  the  compensation  law.  The  first  class  consists 
of  those  specifically  mentioned  in  Section  2  and  the  other 
class  is  made  up  of  those  engaged  in  a  business  which 
is  not  included  in  Section  2,  but  in  connection  with 
which  certain  workmen  are  engaged  in  one  or  more  of 
the  hazardous  employments  covered  by  the  act.  Em- 
ployers conducting  a  mercantile  business  may  be  given 
as  an  example  of  the  class  to  which  the  law  has  this  lim- 
ited application.  While  the  general  employees  of  a  mer- 
cantile house  are  not  engaged  in  hazardous  work,  the 
workman  driving  a  vehicle  would  be  under  the  Act.  The 
mercantile  business  is  not  classified  as  hazardous  but  the 
driver  of  the  vehicle  is  performing  work  declared  hazard- 
ous by  group  41. 

(See  also  Sec.  10  Post.) 

§  4.  Injuries  subject  to  the  Act.  The  amendment 
to  the  State  constitution  authorized  a  compensation  law 
which  would  apply  to  injuries  received  by  employees  in 
the  course  of  the  emploj'^ment.  The  Legislature  has  lim- 
ited the  application  of  the  statute  in  this  respect  by  defin- 
ing injuries  as  meaning  accidental  injuries  arising  out 
of  and  in  the  course  of  the  employment  and  such  disease 
and  infection  as  may  naturally  and  unavoidably  result 
from  such  injuries.  Three  requisites,  therefore,  must 
exist  before  an  injury  can  be  regarded  as  compensatable. 
The  injury  must  be  accidental;  it  must  arise  out  of  the 
employment  and  it  must  have  happened  in  the  course  of 
the  employment.  If  any  one  of  the  three  requisites  is 
absent,  no  compensation  is  payable. 

The  most  common  definition  of  the  term  "accident" 
as  used  in  compensation  statutes  is  found  in  a  decision 
by  the  House  of  I^ords  under  the  compensation  law  of 
England  in  the  case  of  Fenton  vs.  Thorley  5  W.  C.C.I; 
(1903)  A.  C.  433.    There  the  term  was  defined  as  "an 


INJURIES   SUBJECT   TO   THE   ACT  9 

unlocked  for  mishap  or  an  untoward  event  which  is  not 
expected  nor  designed."  This  definiti@n  was  based  to 
some  extent  upon  the  decision  of  the  United  States  Su- 
preme Court  in  the  case  of  U.  S.  Mutual  Accident  Asso- 
ciation vs.  Barry,  131  U.  S.  100.  The  use  of  the  word 
"designed"  in  this  definition  would  exclude  deliberate 
injuries  such  as  result  from  an  assault  and  the  House  of 
Lords,  in  the  case  of  Trim  Joint  Distiict  School  vs. 
Kelley,  7  B.  W.  C.  C.  27 A,  extended  the  definition  to 
include  assault  cases. 

The  English  definition  of  the  term  "accident"  was 
adopted  in  New  York  by  the  Workmen's  Compensation 
Commission  in  Matter  of  Yume  vs.  Knickerbocker  Port- 
land Cement  Co.,  3  N.  Y.  St.  Dep:  Rep.  353,  affirmed 
without  opinion,  153  N.  Y.  Supp.  1151,  appeal  dis- 
missed 216  N..Y.  Memo.  653,  and  in  the  Matter  of  Har- 
nett vs.  Thos.  J.  Steen  Building  Construction  Co.,  2 
N.  Y.  St.  Dep.  Rep.  402,  affirmed  without  opinion  153 
N.  Y.  Supp.  1119,  appeal  dismissed  216  N.  Y. 
101.  In  both  of  these  cases  the  injuries  were  due  to 
assaults  by  fellow  employees.  It  was  held  that  the  word 
"designed"  referred  to  the  state  of  mind  of  the  injured 
workman  and  that  injuries  resulting  from  the  designed 
assault  of  a  fellow  employee  were  accidental  injuries. 

The  term  "arising  out  of  the  employment"  has  been 
the  subject  of  considerable  discussion.  Generally  speak- 
ing, an  injury  does  not  arise  out  of  the  employment  un- 
less it  can  be  traced  to  some  risk  which  is  inherent  in  the 
business  or  to  some  accident  which  is  the  natural  result 
of  the  employment.  The  construction  of  the  phrase  most 
widely  adopted  is  taken  from  a  decision  by  the  Supreme 
Judicial  Court  of  Massachusetts  in  the  case  In  re  Em- 
ployers Liahility  Assurance  Corporation,  102  N.  E. 
697;  215  Mass.  497.    There  the  Court  said: 

"It  arises  'out  of  the  employment  when  there  is 
apparent  to  the  rational  mind  upon  consideration 
of  all  the  circumstances,  a  causual  connection  be- 
tween the  conditions  imder  which  the  work  is  re- 
quired to  be  performed  and  the  resulting  injury. 
Under  this  test,  if  the  injury  can  be  seen  to  have 


10  workmen's  compensation 

followed  as  a  natural  incident  of  the  work  and  to 
have  been  contemplated  by  a  reasonable  person 
familiar  with  the  whole  situation,  as  a  result  of  the 
exposure  occasioned  by  the  nature  of  the  employ- 
ment, then  it  arises  out  of  the  employment." 

Reduced  to  simpler  language  this  decision  means  that 
the  industry  must  cause  or  contribute  to  the  injury,  and 
that  injuries  to  which  all  persons  are  exposed  inde- 
pendent of  the  employment,  are  excluded. 

The  phrase  "in  the  course  of  the  employment"  relates 
to  the  time  and  place  and  gives  rise  to  much  less  diffi- 
culty. While  the  accident  must  happen  during  the 
period  of  the  employment,  the  benefits  of  the  act  are  not 
confined  to  the  time  during  which  the  workman  is  actu- 
ally doing  manual  labor.  Accidents  going  to  and  from 
work  are  usually  excluded  but  may  be  conipensatable  in 
exceptional  cases  such  as  where  the  only  method  of  reach- 
ing the  work  is  one  especially  provided  by  the  employer^ 
and  interruptions  in  the  employment  are  usually  covered. 
Employees  are  also  under  the  protection  of  the  act  for  a 
reasonable  period  of  time  subsequent  to  the  day's  work 
while  they  may  be  engaged  in  getting  ready  to  leave  the 
premises  or  arranging  for  the  next  day's  work,  and  also 
for  a  reasonable  period  of  time  during  which  they  may 
be  entering  or  leaving  the  premises.^ 

In  applying  decisions  which  define  injuries  in  other 
jurisdictions,  a  comparison  of  the  statutes  must  always 
be  made.  The  word  "accidental"  has  been  omitted  from 
many  of  the  American  compensation  statutes.  In  some 
states,  compensation  is  based  upon  injuries  in  the  course 
of  the  employment  and  in  other  states  upon  injuries  aris- 
ing out  of  and  in  the  course  of  the  employment.  No 
state  restricts  the  term  "injury"  more  than  in  the  New 
York  Law. 

"  Matter    of    Dlciaiulo    vs.    H.    S.  May  2,  1916. 

Kerbauch,    Inc.,   1    N.    Y.   St.   Dep.  (See  cases  cited  under  Section  8, 

Rep.  424.  subd.    7,    Workmen's    Compensation 

'  Matter  of  Di  Paolo  vs.  Crimins  Law,  Annotated.) 

Contracting    Co.,    State     Industrial  (See  also  Part  I,  Sec.  18,  Occupa- 

Com.,  The   Bulletin,  Vol.   1,  No.  8,  tional  Diseases.) 
page  7;  AfiF.,  A  pp.  Div.,  Third  Dcpt., 


COMPENSATION  AND  DEATH   BENEFITS  11 

§  5.  Compensation  and  death  benefits.  The  aver- 
age weekly  wage  of  the  injured  employee  is  the  basis 
of  compensation  for  injuries  and  the  amount  is  two- 
thirds  of  such  wages.  The  maximum  is  $15  per  week 
and  the  minimum  is  $5  per  week,  except  that  the  maxi- 
mum for  the  loss  of  a  hand,  arm,  foot,  leg  or  eye  is  $20 
per  week.  Compensation  for  injuries  which  result  in 
temporary  total  disability  and  which  result  in  total  per- 
manent disability  is  payable  during  the  continuance  of 
the  disability,  except  for  the  first  two  weeks.  Certain 
specific  injuries  are  enumerated  for  which  compensation 
is  payable  for  a  fixed  period  of  time.  These  include 
amputations  and  loss  of  members.  Every  injured  work- 
man is  entitled  to  free  medical  attention  for  a  period  of 
sixty  days  after  the  injury. 

The  death  benefits  include  funeral  expenses  not  ex- 
ceeding $100  and  a  percentage  of  the  average  wages  of 
the  deceased  workman  which  is  payable  only  to  the  per- 
sons designated  in  Section  16  of  the  statute.  These  in- 
clude surviving  wife  (or  dependent  husband),  children 
under  18  years  of  age,  grandchildren  or  brothers  or  sis- 
ters under  the  age  of  18  years,  parents  and  grandpar- 
ents. Dependency  is  presumed  as  to  the  surviving  wife 
and  as  to  children  under  18  years  of  age.  The  others 
named  in  the  statute,  to  receive  compensation,  must  es- 
tablish that  thej?^  were  actually  dependent  upon  the  work- 
man at  the  time  of  the  accident.  Dependency  is  a  ques- 
tion of  fact  and  any  degree  of  dependency  is  sufficient 
to  authorize  an  award.^  Parents  may  be  dependent 
upon  the  earnings  of  a  minor  child,"  and  in  a  case  where 
the  deceased  left  a  father  and  mother  and  a  sister  under 
18  years  of  age,  all  three  were  held  to  be  dependents.' 
Where  the  workman  left  a  parent  and  grandparent  who 
were  dependent,  both  were  held  entitled  to  compensa- 
tion.* 

(See  Sec.  14,  Post.)  Brothers,    167    App.    Div.    496;    153 

*  Matter    of    Rhyner    vs.     Huber  N.  Y.  Supp.  392. 

BIdg.    Co.,    171    App.    Div.    71;    166  'Matter    of    Walz    vs.    Holbrook, 

N.  Y.  Supp.  903.  Cabot  &  Rollins  Corp.,  170  App.  Div. 

Matter    of    Walz    vs.     Holbrook,  6;  155  N.  Y.  Supp.  703. 

Cabot  &  Rollins  Corp.,  170  App.  Div.  ■*  Matter  of  Ramsey  vs.  Fairbanks 

6;  155  N.  Y.  Supp.  703.  Morse  &  Co.,  155  N.  Y.  Supp.  1136. 

'Matter     of     Friscia     vs.     Drake  (No  opinion.) 


12  woekmen's  compensation 

The  surviving  wife  receives  30%  of  the  average  weekly 
wage  during  widowhood  with  two  years'  compensation 
in  a  himp  in  case  of  remarriage  and  10%  for  each  child. 
When  there  is  no  widow,  the  children  receive  15%  each, 
and  this  same  percentage  is  received  by  dependent 
grandchildren,  brothers  and  sisters.  Dependent  par- 
ents and  grandparents  received  15%  of  the  average 
weekly  wages  until  the  law  was  amended  in  1916  (to 
take  effect  June  1,  1916)  at  which  time  their  compensa- 
tion became  increased  to  25%.  The  total  compensation 
payable  under  the  section  is  limited  to  two-thirds  of  the 
wages  of  the  deceased.  The  surviving  wife  (or  depen- 
dent husband)  and  children  have  preference  over  other 
dependents  and  cases  will  arise  where  the  remaining 
dependents  would  receive  no  benefits  under  the  act.  It 
is  ajjparent  also  that  many  cases  will  arise  in  which  the 
surviving  dependent  will  be  not  of  the  class  described 
in  Section  16  of  the  act,  such  as  a  dependent  child, 
brotlier  or  sister  over  the  age  of  18  years. 

§  6.  Employees  not  within  the  act.  It  is  apparent 
from  the  foregoing  sections  that  the  compensation  law 
is  limited  in  its  application.  When  all  provisions  of  the 
act  are  read  together,  particularly  the  definitions  con- 
tained in  Section  3,  compensatable  injuries  may  be  de- 
fined as  accidental  injiu'ies  received  by  an  employee 
while  engaged  in  a  hazardous  employment  Carried  on  by 
his  employer  for  pecuniary  gain  at  the  plant  or  away 
from  the  plant  in  the  course  of  the  employment,  which 
arise  out  of  and  in  the  course  of  such  employment,  and 
such  disease  or  infection  as  may  naturally  and  uavoid- 
ably  result  therefrom,  for  which  compensation  or  death 
benefits  are  provided. 

Many  employments  are  expressly  exempted  and  many 
are  omitted.  As  to  all  of  these,  the  liability  existing  at 
common  law  and  under  the  old  Employers  Liability  Act 
still  remains.  Other  employments  are  partly  covered 
by  the  compensation  law  and  the  employer  may  have  a 
workman  who  is  within  the  protection  of  the  act  part  of 
the  time  and  to  whom  he  may  be  liable  in  a  suit  for  dam- 
ages at  other  times.    The  compensation  provided  is  also 


EMPLOYKES  NOT  COVERED  18 

limited  and  injuries  may  occur  which  are  not  compensa- 
table  and  which  subject  the  employer  to  damages.  In 
case  of  death,  where  there  are  dependents  other  than  of 
the  class  described  in  Section  16,  the  suit  for  damages 
still  remains.  In  addition  there  remains  the  liability 
under  the  Federal  statutes  and  under  the  jurisdiction 
of  the  Admiralty  Courts.  These  forms  of  liability  are 
treated  more  at  length  in  Sections  7  to  24  which  follow. 
They  are  discussed  in  Part  II  in  connection  with  the 
State  Insurance  Fund  and  other  forms  of  compensation 
insurance. 

§  7.  Dual  employments.  Some  employers  are  en- 
gaged in  more  than  one  line  of  business  and  one  branch 
of  the  business  may  be  under  the  compensation  act  while 
as  to  another  branch,  the  common  law  or  the  old  Em- 
ployers Liability  Act  still  applies.  In  Sickles  vs.  Balls- 
ton  Refrigerating  Co.  156  N.  Y.  Supp.  864;  171  App. 
Div.  123,  the  employer  conducted  a  storage  business  in 
Ballston,  N.  Y.,  and  was,  therefore,  engaged  in  a  hazard- 
ous employment  because  the  business  of  "storage"  is  in- 
cluded in  group  29  of  Section  2.  The  employer  was 
likewise  engaged  in  the  business  of  buying  and  selling 
fruit.  The  claimant  was  injured  while  in  the  latter  busi- 
ness and  the  award  of  compensation  was  reversed  by  the 
Court.  Meeting  the  claimant's  contention  in  support 
of  the  award,  the  Court  said : 

"But  the  difficulty  is  that  the  employer  was  en- 
gaged in  two  entirely  distinct  kinds  of  business,  one 
of  which  was  not  within  the  protection  of  the  statute 
and  that  the  claimant  was  injured  in  performance  of 
his  duties,  which  at  the  time  of  the  injury,  solely 
had  reference  to  that  kind  of  business  not  thus  pro- 
tected. 
In  another  case,  the  employer  was  engaged  in  the 
manufacture  of  cheese,  which  comes  within  the  provisions 
of  group  33  relating  to  the  preparation  of  food-stuffs. 
The  injured  workman  was  employed  specially  for  the 
purpose  of  harvesting  ice.     An  award  was  made  upon 
the  theory  that  the  harvesting  of  the  ice  was  incident  to 
the  business  of  preparing  food-stuffs.    This  award  was 


14  woekmen's  compensation 

reversed,  the  Court  stating,  "there  is  no  suggestion  in 
the  statute  that  a  common  laborer  engaged  in  harvesting 
ice  is  engaged  in  a  hazardous  occupation."  The  decision 
might  have  been  different  if  a  regular  employee  had  been 
sent  out  to  perform  the  same  work,  although  that  point 
was  not  decided/  So  also  the  employee  who  makes  de- 
liveries of  merchandise  will  be  under  the  compensation 
law  as  to  the  driver  of  a  vehicle^  but  not  where  the  de- 
livery is  made  on  foot.^  Ice  harvesting  has  since  been 
added  to  the  law  as  one  of  the  hazardous  employments. 
In  another  case,  in  which  a  wholesale  dealer  maintained 
a  storehouse  in  connection  with  his  business,  the  Appel- 
late Division  decided  that  storage  as  used  in  Group  29 
means  a  place  of  storage  where  the  goods  of  others  are 
kept  for  hire.^  To  meet  this  decision,  Group  29  was 
amended  in  1916  to  include  storage  of  all  kinds.  The 
amendment  adds  still  more  confusion  to  the  law.  A 
merchant  who  has  a  storehouse  in  connection  with  his 
business  will  have  employees  who  are  not  subject  to  the 
Compensation  Law  while  working  about  the  business  it- 
self but  will  become  subject  to  its  provisions  whenever 
they  perform  any  work  in  connection  with  the  place  of 
storage. 

DUAL  LIABILITY  IN  RELATION  TO  TRUCK  DRIVERS. 

In  the  case,  Matter  of  Dale  vs.  Saunders  Brothers,^ 
employer,  and  the  Standard  Accident  Insurance  Co., 
insurance  carrier,  the  Appellate  Division  of  the  Supreme 
Court,  Third  Department,  in  a  decision  handed  down 
March  8,  1916,  has  decided  that  truck  drivers  may  at 
times  be  regarded  as  the  employee  of  the  owner  of  the 
truck  designated  as  the  general  employer  and  also  an 
employee  of  another  person,  designated  as  a  special  em- 
ployer, for  whom  the  driver  may  be  working  for  the  time 
being.    In  this  case  Saunders  Brothers  were  manufac- 

*  Matter  of  Aylesworth  vs.  Phoenix      666. 

Cheese   Co.,   170  App.   Div.  84,   155  *  Matter  of  Mlhn  vs.  Hussey,  169 

N.  Y.  Supp.  916.  App.  Div.  742;  155  N.  Y.  Supp.  860. 

*  Matter  of  Costello  vs.  American         ' App.  Div.  ;  167  N.  Y. 

Express  Co.,  217  N.  Y.  179.  Supp.  1062;  Affirmed  by  the  Court 

*  Matter  of  Newman  vs.  Newman,  of  Appeals  April  26,  1916. 
169  App.  Div.  745;  155  N.  Y.  Supp. 


DUAI^  LIABILITY  15 

turers  of  brick  and  Dale  was  one  of  their  drivers.  From 
time  to  time  Saunders  Brothers  furnished  teams  with 
drivers  to  one  Patrick  Walsh,  who  conducted  a  sand 
bank  for  the  purpose  of  delivering  sand  to  Walsh's  cus- 
tomers. Upon  the  date  of  the  accident,  a  team  and 
wagon  had  been  furnished  to  Walsh  in  this  manner  and 
Dale  was  sent  as  a  driver.  Walsh  paid  Saunders  Broth- 
ers by  the  day  for  the  team  and  Dale  was  paid  by  Saun- 
ders Brothers.  The  accident  which  resulted  in  Dale's 
death,  happened  while  Dale  was  assisting  in  the  loading 
of  the  wagon  at  the  sand  bank.  The  State  Workmen's 
Compensation  Commission  awarded  compensation  to 
the  widow  and  children  against  Saunders  Brothers,  there 
being  some  evidence  to  show  that  Saunders  Brothers  re- 
tained control  and  direction  over  the  work  performed  by 
Dale,  although  at  the  time  he  was  loading  sand  for 
Walsh. 

In  deciding  that  both  Saunders  Brothers  and  Walsh 
might  be  liable  for  compensation,  the  Court  in  an  opin- 
ion written  by  Kellogg,  P.  J.,  said: 

"The  fact  that  the  owner  of  the  sand  pit  might 
be  liable  under  this  law  does  not  absolve  the  general 
employer.  Dale  was  required  to  drive  his  team 
where  the  Saunders  Brothers  directed,  and  by  re- 
quiring him  to  go  into  the  sand  pit  and  subjecting 
him  to  the  increased  danger  there,  they  cannot  re- 
lieve themselves  from  the  ordinary  duties  and  liabil- 
ities to  their  teamster.  The  fact  that  under  the 
provisions  of  this  law  the  employment  might  fall 
within  two  or  more  different  groups  and  thereby 
two  or  more  persons  might  be  liable  to  make  the 
compensation  does  not  prejudice  the  injured  em- 
ployee or  his  family.  It  furnishes  an  additional 
guarantee  that  payment  will  be  made.  The  gen- 
eral employer,  where  the  injury  occurs  within  the 
lines  of  the  general  employment,  is  liable,  and  that 
liability  is  not  destroyed  by  the  fact  that  the  special 
employer  may  also  be  liable,  thus  giving  the  em- 
ployee a  choice  of  remedies  with  but  one  compensa- 
tion." 


16  workmen's  compensation 

In  a  previous  case,  flatter  of  Gimher  vs.  T.  P.  Kane 
Co.,  2  N.  Y.  St.  Dep.  Rep.  i75,  affirmed  without  opin- 
ion, 155  N.  Y.  Supp.  1109,  where  the  facts  were  almost 
identical,  the  Commission  awarded  compensation  against 
the  special  employer  instead  of  the  general  employer. 
This  decision  of  the  Commission  was  based  upon  a  con- 
clusion that  the  special  employer  had  control  over  the 
work  performed  by  the  driver.  The  award  in  the  Gim- 
ber  case  was  affirmed  by  the  Appellate  Division  in 
November,  1915,aipon  the  authority  of  Miller  vs.  North 
Hudson  Contracting  Co.,  166  A  pp.  Div.  348. 

The  Dale  case  was  affirmed  in  the  Court  of  Appeals 
upon  the  ground  that  the  general  employer  should  be 
held  liable  under  the  general  purpose  of  the  Compensa- 
tion Law.  The  Court  did  not  pass  upon  the  question  of 
dual  liability  established  by  the  Appellate  Division.  The 
decision  of  the  Court  of  Appeals,  however,  is  contrary 
to  the  decision  of  the  Appellate  Division  and  is  also  con- 
trary to  the  decision  of  the  Appellate  Division  in  the 
Gimber  case. 

§  8.  Doubtful  employments.  The  attempt  upon 
the  part  of  the  Legislatiu'e  to  classify  the  hazardous  in- 
dustries into  42  groups  leaves  many  in  what  may  be 
termed  as  a  twilight  zone.  This  is  particularly  true  in 
relation  to  group  30  which  includes  the  manufacture  or 
preparation  of  meat  or  meat  products  and  as  to  group 
33,  covering  the  preparation  of  food  stuffs.  In  one  of 
its  earliest  cases,  the  State  Workmen's  Compensation 
Commission  decided  that  the  preparation  of  meats  and 
the  preparation  of  food  stuffs  did  not  mean  the  ordinary 
preparation  of  meat  or  food  stuffs  for  cooking  purposes 
but  involved  a  preparation  by  some  mechanical  device  or 
a  preparation  which  either  changed  the  form  of  the  ma- 
terial to  render  it  suitable  for  use,  or  changed  the  nature 
of  the  material  for  the  same  purpose.^  In  this  case,  the 
claim  was  made  by  the  widow  of  an  employee  who  was 
working  as  a  butcher  or  assistant  chef  at  the  Hampton 
Hotel  in  Albany,  N.  Y.    While  boning  a  leg  of  mutton, 

» Matter   of   De   La   Gardelle   vs.   158  N.  Y.  Supp.  162. 
Hampton  Co.,  167   App.   Div.  617; 


DOUBTFUL  EMPLOYMENTS  17 

his  knife  accidentally  slipped,  severed  an  artery  and 
caused  his  death.  The  claim  for  compensation  was  denied 
by  the  Commission  and  this  decision  was  affirmed  by  the 
Court.  The  decision  is  especially  important  because  it 
excludes  from  the  statute  employees  engaged  in  the 
preparation  of  meat  or  food  stuffs  for  cooking  purposes 
in  hotels  and  restaurants.  One  of  the  judges  writing 
in  relation  to  the  case,  gives  the  application  of  these  two 
groups  in  the  following  language: 

"Groups  30  and  33  of  Section  2,  of  the  statute 
under  consideration,  which  enumerates  and  defines 
hazardous  employments  cannot,  in  my  judgment, 
be  regarded  as  covering  any  employment  consisting 
of  the  preparation  of  meat  or  food  stuif s  for  cook- 
ing purposes,  in  the  ordinary  course  of  household 
duties,  domestic  service  or  the  conduct  of  hotels  or 
restaurants  in  which  meats  or  foods  are  prepared 
and  cooked  for  eating  on  the  premises.  *  *  *  These 
groups,  as  phrased  by  the  Legislature,  relate  ob- 
viously to  employment  in  industrial  establishments 
or  manufactories  where  meats,  fruits,  vegetables 
and  similar  food  stuffs  are  prepared  for  sale  for 
consumption  elsewhere." 
Before  the  groups  were  enlarged  by  the  amendments 
of  1916,  there  was  much  doubt  concerning  the  applica- 
tion of  the  law  to  many  other  employments.    Meat  mar- 
kets, which  are  now  included  in  Group  30,  were  not  with- 
in the  protection  of  the  act  as  to  the  employees  gener- 
ally,^ but  an  employee  in  a  meat  market  engaged  in  the 
preparation  of  meat  by  means  of  an  electric  meat  chop- 
per was  held  to  be  within  Group  30.^    As  already  point- 
ed out,  ice  harvesting,  and  storage  except  where  the 
goods  of  others  are  stored  for  hire,  were  not  within  the 
act  until  the  statute  was  amended.    Horseshoeing  was 
included  by  the  Commission  upon  the  theory  that  this 
work  involved  the  manufacture  of  small  castings,  forg- 
ing or  metal  wares  within  the  meaning  of  Group  23. 
This  ruling  of  the  Commission  was  reversed  by  the 

'Matter  of  Newman  vs.  Newman,  'Matter  of  Kohler  vs.  Frohman, 
169  App.  Div.  745;  155  N.  Y.  Supp.  167  App.  Div.  633;  163  N.  Y.  Supp. 
665.  659. 


18  workmen's  compensation 

Supreme  Court  in  Matter  of  Grady  vs.  Holliday,  155 
N.  Y.  Supp.  1110.  Horseshoeing  and  blacksmithing  are 
now  both  included  in  Group  24.  The  operation  of  ele- 
vators which  now  comes  within  the  provisions  of  Group 
22  was  another  doubtful  employment.  The  Commis- 
sion included  elevators  as  vehicles  under  Group  41.  This 
decision  was  affirmed  by  the  Appellate  Division  in  Mat- 
ter of  Wilson  vs.  Dor  fling  er,  170  A  pp.  Div.  119;  155 
N.  Y .  Supp.  857 ,  which  was  reversed  by  the  Court  of 
Appeals  in  a  decision  handed  down  April  25,  1916,  in 
an  opinion  written  by  Bartlett,  Ch.  J.  Another  ques- 
tionable employment  related  to  druggists  whose  employ- 
ees were  held  to  come  within  the  act  because,  as  stated 
by  the  Court,  a  wholesale  druggist  might  reasonably  be 
inferred  to  be  engaged  in  the  manufacture  of  drugs  and 
chemicals.* 

Confusion  also  frequently  arises  in  cases  where  an 
employer  is  performing  work  for  or  in  connection  with 
the  property  or  business  of  another.  Architects,  insur- 
ance companies  and  others  frequently  send  inspectors  or 
other  employees  to  superintend,  inspect  and  otherwise 
look  after  the  erection  of  buildings.  It  is  a  mooted  ques- 
tion whether  employees  of  this  character  may  be  re- 
garded as  engaged  in  the  erection  of  the  building.  In  a 
claim  against  an  employer  who  furnished  watchmen  to 
protect  merchandise  which  had  been  unloaded  from  ves- 
sels, the  employee  was  held  to  be  engaged  in  longshore 
work  and  the  Commission  awarded  compensation.  The 
act  has  never  been  construed  by  any  Court  as  to  this 
class  of  cases  but  the  reasoning  in  other  cases  indicates 
that  such  employers  would  not  be  regarded  as  engaged 
in  hazardous  employments. 

§  9.  Employments  expressly  exempted.  This  class 
includes  farm  laborers,  domestic  servants  and  employ- 
ments in  a  trade,  business  or  corporation  which  is  not 
carried  on  for  pecuniary  gain  or  operated  for  profit. 
The  rights  and  liabilities  as  between  the  employer  and 
employee  in  all  of  these  classes  is  governed  by  the  old 

*  Matter  of  Larsen  vs.  Paine  Drug      Supp.    769;    aff.   N.    Y.   ; 

Co.,  169  App.  Div.  888;  165  N.  Y.     Court  of  Appeals,  May  12,  1916. 


EMPLOYMENTS    EXEMPTED  19 

law  of  master  and  servant.  Farm  laborers  doubtless 
include  laborers  engaged  in  farm  work  for  canning  in- 
dustries and  for  florists.  It  also  includes  employees  en- 
gaged in  the  operation  of  haypresses,  threshing  ma- 
chines, shredders  and  evaporators  except  where  these  oc- 
cupations are  carried  on  as  a  separate  business,  in  which 
event,  although  neither  is  classified  as  hazardous,  some 
of  the  employees  would  be  imder  the  compensation  law 
and  others  would  be  governed  by  the  rules  of  common 
law. 

While  a  chauffeur  is  not  classed  as  a  domestic  servant, 
one  engaged  in  the  operation  of  a  pleasure  car  does  not 
come  within  the  act  because  the  employment  is  not  car- 
ried on  for  pecuniary  gain.  A  chauffeur  taking  his 
employer  to  and  from  his  place  of  business  is  not  under 
the  act,  but  would  be  if  the  automobile  is  used  in  con- 
nection with  the  business.  Chauffeurs  employed  in  the 
operation  of  motor  trucks,  taxicabs,  or  other  vehicles  in 
connection  with  a  business,  are,  of  course,  included  un- 
der Group  41,  relating  to  the  operation  of  vehicles.  The 
chauffeur  of  a  physician  is  held  to  be  under  the  act  be- 
cause the  car  in  such  case  is  operated  in  an  occupation 
conducted  for  profit. 

Employments  which  are  not  operated  for  a  profit 
cover  a  large  field.  They  include  the  erection  of  private 
buildings,  the  management  and  care  of  private  estates, 
charitable  institutions,  hospitals,  churches,  clubs,  schools, 
colleges  and  universities.  Private  schools  or  sanatoriums 
conducted  for  profit  are  not,  however,  exempted.  In  de- 
termining what  employments  are  excluded  under  this 
subdivision  the  question  of  profit  is  not  necessarily  de- 
ciding. It  is  the  purpose  which  controls.  If  the  pur- 
pose is  to  make  and  distribute  a  profit  to  the  owners, 
the  business  is  conducted  for  pecuniary  gain  no  matter 
whether  profit  or  loss  results  from  its  operation.  On  the 
other  hand,  where  the  owners  distribute  no  profits  but 
are  engaged  entirely  in  charitable  undertakings,  such  as 
the  Salvation  Army,  the  emploj^^ment  is  excluded. 

See  cases  cited  under  Section  3,   subd.  5,  The  Workmen's  Compensa- 
tion Law,  Annotated. 


20  woekmen's  compensation 

§  10.  Non-hazardous  employments.  The  employ- 
ments which  are  subject  to  the  compensation  act  have 
been  treated  upon  brifly  in  Section  3.  As  stated  by 
Supreme  Court  Justice  Geo.  F.  Lyon  in  the  Matter  of 
Newman  vs.  Newman,^  "the  benefits  of  the  workmen's 
Compensation  Act  are  restricted  to  injuries  or  death  in- 
curred by  employees  engaged  in  one  or  more  of  the  speci- 
fied hazardous  employments."  The  employments  which 
are  not  thus  specified  may  be  designated  as  non-hazard- 
ous employments. 

The  distinction  between  the  two  classes,  hazardous  and 
non-hazardous,  is  explained  in  the  leading  case,  Matter 
of  Gleisner  vs.  Gross  <&  Herbener.^  Speaking  of  haz- 
ardous employments,  the  Court  said,  "If  an  employee 
is  hired  for  work  falling  exclusively  or  predominantly 
within  one  or  more  of  the  enumerated  occupations,  his 
right  to  compensation  for  injury  in  the  course  of  his  em- 
ployment cannot  fairly  be  made  to  hinge  on  a  finding 
that  he  was,  at  the  moment  of  injury,  engaged  in  an  act 
clearly  constituting  the  direct  doing  of  work  named  in 
the  act,"  and  in  another  place,  "If  an  employee's  duties 
are  exclusively  or  predominantly  within  an  enumerated 
employment  or  employments,  and  he  is  injured  while 
doing  work  fairly  within  the  scope  of  the  ordinary  and 
accustomed  fulfilment  of  such  duties,  he  has  a  rightful 
claim,  even  though  the  particular  act  he  was  doing  when 
mishap  befell  him,  would  not,  of  and  by  itself,  ordinarily 
be  described  by  the  use  of  phraseology  contained  in  the 
statute  or  as  the  doing  of  work  enumerated  in  the  stat- 
ute." It  is  not  to  be  assumed  from  this  quotation  that 
every  employee  working  in  a  designated  hazardous  em- 
ployment is  subject  to  the  compensation  law  or  that 
every  injury  is  compensatable  for,  as  stated  by  the  same 
Court,  and  as  appears  by  the  sections  of  this  work  which 
follows : 

"The  Legislature  has  not  attempted  to  impose 
upon  employers  the  obligation  of  insuring  their 
employees  generally  against  accident." 

»169    App.   Dlv.   746;   165   N.   Y.       '170    App.    Div.    87;    155    N.    Y. 
Supp.  666.  Supp.  946. 


NON-HAZARDOUS   EMPLOYMENTS  21 

In  the  Gleisner  case,  the  employee  was  a  janitor. 
Neither  this  class  of  work  nor  the  business  of  his  em- 
ployer is  declared  hazardous.    The  employee,  however, 
also  performed  general  repair  work  and  at  times  was 
engaged  in  the  operation  of  a  boiler.    Upon  the  appeal 
from  an  award  made  by  the  Commission,  the  point  of  the 
case  was  stated  by  the  Court  in  the  following  language : 
"The  whole  question  here  at  issue  is  whether  at 
the  time  the  claimant  met  with  mishap,  he  was  doing 
work  and  engaged  in  an  employment  which  the 
Legislature  has  designated  as  'hazardous'  and  so 
has  brought  himself  within  the  purview  of  the  new 
system  of  compensation  for  industrial  -accidents 
created  by  the  Workmen's  Compensation  Law." 
and  speaking  of  the  employee's  right  to  compensation, 
the  Court  stated  that 

"If,  within  the  scope  of  his  duties,  he  was  injured 
while  actually  and  unmistakably  doing,  at  the  mo- 
ment, work  of  a  kind  specifically  defined  as  'hazard- 
ous,' his  right  is  clear." 
and  the  award  of  compensation  was  reversed  because, 
at  the  time  of  the  accident  he  was  not  performing  hazard- 
ous work.     After  referring  to  employments  which  are 
mentioned  in  the  Act,  the  Court  laid  down  the  following 
rule,  which  applies  to  non-hazardous  employments: 

"Where,  however,  as  apparently  here,  the  em- 
ployee's ordinary  duties  and  accustomed  scope  of 
activities  do  not  come  exclusively  or  predominantly 
within  the  category  of  enumerated  employments, 
and  only  casually  and  incidently  does  he  do  work 
fairly  falling  within  that  category,  his  right  to  re- 
muneration must  hinge  on  a  finding  that  he  sus- 
tained injury  while  actually  and  momentarily  doing 
work  named  in  the  statute." 
Matter  of  Newman  vs.  Newman  is  also  a  case  in  point 
in  relation  to  non-hazardous  employment.    The  injured 
workman  was  employed  in  a  retail  meat  market  as  a 
driver  on  a  delivery  wagon.    He  also  worked  in  the  store 
waiting  on  trade  and  made  deliveries  on  foot.     In  dis- 
missing the  award  of  compensation,  the  Court  said :  "He 


22  workmen's  compensation 

had  put  his  horse  up  several  hours  before,  and  was  en- 
gaged in  the  occupation  of  a  deliveryman  on  foot.  This 
occupation  was  not  inchided  in  any  of  the  groups  of 
hazardous  employments,  nor  was  it  on  this  occasion  a 
part  of,  or  in  any  way  connected  with,  a  delivery  by 
horse  and  wagon,  nor  can  it  be  said,  under  the  circum- 
stances, to  have  been  a  risk  incidental  to  a  hazardous  em- 
ployment." 

It  follows  from  the  foregoing  that  an  employer  who 
is  engaged  in  a  business  which  is  not  named  in  Section 
2  of  the  Act  is  subject  to  the  payment  of  compensation 
where  his  employees  are  doing  work  named  in  the  statute 
but  at  all  other  times  is  liable  to  suits  for  damages  under 
the  old  rule  of  law  as  between  master  and  servant. 

§11.  Casual  employments.  In  the  Matter  of 
Bar  gey  i^s.  Massaro  Macaroni  Co.,  170  A  pp.  Div.  103; 
155  N.  Y.  Supp.  1076,  it  was  decided  that  workmen  em- 
ployed occasionally  to  do  repairs  upon  a  plant  where  a 
hazardous  employment  is  carried  on  are  excluded  from 
the  compensation  law.  In  tlie  case  in  question,  the  em- 
ployer was  engaged  in  a  business  that  was  classified  as 
hazardous  under  the  compensation  act.  The  claimant's 
husband  was  hired  as  a  carpenter  to  erect  a  partition  in 
the  plant.  In  deciding  the  case  and  reversing  the  award 
made  by  the  commission,  the  Court  said : 

"He  was  not  in  the  general  employ  of  the  com- 
pany, but  was  the  man  it  usually  employed  to  do 
little  odd  jobs  about  its  building.  He  never  did  any 
work  in  the  macaroni  business;  his  only  work  for 
the  defendant  was  doing  work  upon  or  about  its 
buildings.  I  do  not  think  he  was  an  employee  in  a 
business  declared  hazardous  by  the  Workmen's 
Compensation  Law.  Clearly,  he  was  not  engaged 
in  the  macaroni  business,  but  his  job  was  as  a  car- 
penter. The  company  was  not  carrying  on  the 
carpenter  business  or  doing  any  carpenter  work  for 
a  profit;  it  was  making  repairs  and  improvements 
on  its  real  estate  and  hired  a  general  workman  for 
that  purpose." 
Prior  to  this  decision  the  Commission  had  ruled  that 


CASUAL  EMPLOYEES  28 

carpenters,  painters  and  other  mechanics,  employed  oc- 
casionally by  a  person  not  engaged  in  a  hazardous  em- 
ployment, were  subject  to  the  compensation  law.  In  the 
Bargey  case,  the  Court  expressly  held  that  such  employ- 
ees are  not  within  the  benefits  of  the  compensation  act. 
The  Court  recognized  that  where  a  regular  employee  is 
performing  work  which  is  not  hazardous  in  itself  but  is 
incidental  to  the  general  work  carried  on  by  the  em- 
ployer, such  work  may  be  considered  as  part  of  the 
hazardous  employment,  and  it  was  then  stated,  "but 
where  a  man  engages  a  carpenter  by  the  hour  to  do 
some  work  upon  his  premises  in  the  way  of  improve- 
ments, I  cannot  feel  that  he  is  engaged  in  the  hazardous 
employment  of  structural  carpentry  or  repair  of  build- 
ings as  contemplated  by  Group  42  of  the  law."  The 
decision  in  this  case  is  supported  by  the  fact  that  only  a 
few  of  the  42  groups  contain  the  word  "repair"  from 
which  it  would  appear  that  the  Legislature  intended  to 
exclude  repair  work  except  where  it  is  expressly  men- 
tioned. 

The  tenor  of  this  decision  is  to  place  carpenters,  paint- 
ers and  employees  in  trades  similar  thereto  under  the 
compensation  law  only  when  such  persons  are  in  the  em- 
ploy of  one  w^hose  business  is  that  of  carpenter  work, 
painting  or  the  like.  A  mechanic  of  this  character  em- 
ployed casually  by  the  day  by  a  manufacturer  or  other 
employer  is  not  under  the  Compensation  Law.  The 
employer  is  still  liable  to  such  employees  for  negligence 
and  in  the  Bargey  case,  after  compensation  was  denied, 
suit  was  brought  for  damages  under  the  law  as  it  existed 
before  the  compensation  law  was  enacted.  The  Bargey 
case  was  followed  by  the  Commission  in  a  decision  ren- 
dered February  10,  1916,  in  Claim  No.  14407,  McCom- 
sey  vs.  Simmonds  (The  Bulletin,  Vol.  1,  No.  6,  p.  13), 
in  which  the  workman  received  injuries  while  painting 
a  barn  for  his  employer. 

An  attempt  1ms  been  made  to  meet  the  decision  in  the 
Bargey  case  by  amending  the  definition  of  the  term 
"employee"  and  by  adding  a  new  subdivision  to  Section 
3  of  the  act  under  which  the  words  "manufacture,"  "con- 


24  Workmen's  compensation 

struction,"  "operation"  and  "installation"  are  defined  as 
including  repairs.  These  amendments  do  not,  however, 
meet  the  point  raised  by  the  Court  to  the  effect  that  a 
company  engaged  in  the  manufacturing  business  is  not 
carrying  on  the  carpentry  business  for  pecuniary  gain 
when  it  emploj^s  a  carpenter  to  make  repairs  to  its  place 
of  business. 

§12.  Salesmen.  The  Commission  has  ruled  that 
salesmen  who  are  required  to  work  or  report  at  the  plant 
where  the  hazardous  employment  is  carried  on  are  sub- 
ject to  the  compensation  law  whether  the  injury  hap- 
pens at  the  plant  or  while  the  salesman  is  travelling. 
Employees  of  this  character  are  to  some  extent  subjected 
to  the  risk  of  the  hazardous  employment  while  on  the 
premises  and  the  Commission's  ruling  regarding  acci- 
dents at  the  plant  appears  to  be  sound.  An  award  was 
upheld  where  a  salesman  in  the  employ  of  a  clothing 
manufacturer  received  an  injury  by  falling  from  a  lad- 
der while  looking  at  a  price  ticket  on  a  piece  of  cloth 
which  was  to  be  used  in  making  a  suit  of  clothes.^  The 
widow  of  a  sales  manager  was  held  entitled  to  compensa- 
tion by  reason  of  a  fatal  injury  which  the  employee  re- 
ceived by  falling  on  the  stairs  while  passing  from  the 
floor  where  the  manufacturing  was  conducted  to  the 
upper  floor  where  the  office  was  situated.^ 

Where  the  injury  is  received  away  from  the  plant,  the 
salesman  is  subject  in  no  greater  risk  than  one  travelling 
for  the  ordinary  mercantile  establishment.  When  the 
injury  is  received  while  installing  machinery  which  the 
employee  has  sold,  compensation  is  payable,^  but  where, 
as  in  the  Matter  of  Sickles  ( Sec.  7  infra. ) ,  the  injury  hap- 
pens on  the  road  and  has  no  connection  with  the  risk  of 
the  hazardous  employment,  the  compensation  law  has  no 
application.  In  the  Sickles  case  the  employer  conducted 
a  storage  business,  which  is  classified  as  hazardous  un- 

*  Matter  of  Berlinger  vs.  Ritchie  &    (Without  opinion.) 
Cornell,  Aff.  156  N.  Y.  Supp.  1116.       '  Matter  of  Benton  vs.  Fraser,  AfF. 
(Without  opinion.)  156    N.   Y.    Supp.    1115.      (Without 

'  Matter  of  Nicholson  vs.  Klipstein  opinion.) 
&  Co.,  AflF.   155  N.  Y.  Supp.   1127. 


SALESMEN  25 

der  Group  29.  He  bought  and  sold  fruit  and  some  or 
all  of  the  fruit  purchased  was  placed  in  the  storehouse. 
The  employee  was  a  purchasing  and  sales  agent  and  was 
injured  while  engaged  in  the  course  of  his  employment 
in  West  Virginia,  the  Court  said: 

"I  do  not  think  the  work  in  which  the  claimant 
was  engaged  when  he  received  his  injury  has  any 
logical  or  appropriate  connection  with  the  storage 
business.     That  business  implies  merely  the  hous- 
ing and  care  of  property  within  a  storehouse  or 
other  appropriate  place  of  deposit.  *  *  *  And  what- 
ever dangers  and  hazards  may  be  incident  to  the 
storage  business  certainly  have  no  connection  with 
travelling  through  the  country  as  a  purchasing  or 
sales  agent.  *  *  *  It  certainly  was  not  the  legislative 
intent  in  using  the  word  'storage'  and  making  it  a 
hazardous  employment  to  include  therein  the  duties 
of  a  purchasing  agent,  which  differ  in  no  respect 
merely  because  the  objects  of  his  purchases  may  find 
their  way  into  a  storage  house." 
Under  this  decision  a  salesman  or  travelling  man  injured 
away  from  the  plant  is  left  to  his  common  law  remedy. 
The  risk  of  injury  while  travelling  does  not  arise  out  of 
any  hazardous  employment  but  is  common  to  all. 

In  a  decision  handed  down  by  the  Appellate  Division 
of  the  Supreme  Court,  Third  Department,  since  this 
work  was  in  press,  in  Matter  of  Robert  Lyon  vs.  Wind- 
sor &  Davis,  it  was  held  that  a  salesman  employed  by  a 
firm  engaged  in  the  manufacture  of  women's  clothing 
was  not  entitled  to  compensation  for  injuries  received 
by  falling  while  passing  through  the  factory.  It  was^ 
held  that  "the  ordinary  activities  of  salesmanship  are  not 
embraced  within  the  manufacture  of  the  article  being 
sold."  This  decision  excludes  a  salesman  from  the  bene- 
fits of  the  Workmen's  Compensation  La  weven  though 
the  injury  happens  at  the  plant.  In  this  case  the  Ap- 
pellate Division  decided  that  the  Compensation  Law  did 
not  make  the  employer's  business  the  test  and  that  the 
benefits  of  the  act  had  not  been  conferred  upon  all  em- 
ployees.   It  was  said,  "The  employee's  right  to  compen- 


26  workmen's  compensation 

sation  arises  when  he  does  work  enumerated  in  the  stat- 
ute." The  amendment  of  the  term  "employee"  by  Chap- 
ter 622  of  the  Laws  of  1916  was  intended  to  meet  this 
situation  and  to  bring  all  employees  within  the  protection 
of  the  Act  where  the  business  is  classified  as  hazardous. 

§  13.  Injuries  resulting  in  disfigurement.  The 
Appellate  Division  of  the  Supreme  Court,  Second  De- 
partment, in  the  case  of  Shinnick  vs.  Clover  Farm  Co., 
169  App.  Div.  236;  154  N.  Y.  Supp.  423;  S.  C.  152  do. 
649,  has  decided  that  where  the  schedules  of  compensa- 
tion do  not  cover  the  injury  suffered  by  an  employee, 
he  does  not  fall  within  the  purview  of  the  compensation 
act  and  cannot  claim  compensation  under  it,  for  the  act 
provides  no  scale  or  gauge  by  which  to  determine  what 
compensation  should  be  provided.  In  the  case  in  ques- 
tion, the  plaintiff  was  in  the  defendant's  employ  as  a 
driver  and  was  injured  by  the  attack  of  a  horse  which 
resulted  in  the  amputation  of  a  portion  of  one  of  plain- 
tiff's ears.  The  suit  was  brought  for  damages  and  plain- 
tift"s  right  to  recover  was  upheld  for  the  reason  that 
Section  15  of  the  compensation  act  did  not  provide  any 
fixed  compensation  for  the  amputation  of  an  ear  and 
consequent  disfigurement.  "As  to  such  an  injury,  there- 
fore," the  Court  said,  "the  right  to  recover  remains  as 
it  was  before  the  act  was  passed." 

This  decision  has  been  the  subject  of  much  discussion 
and  criticism.  Many  students  of  compensation  laws  are 
of  the  opinion  that  the  New  York  act  can  be  extended  to 
a  case  of  this  character  for  the  reason  that  such  an  injury 
might  result  in  total  disability  or  in  death,  in  which  event 
the  right  of  compensation  could  not  be  reasonably  dis- 
'puted.  The  Shinnick  case,  however,  was  passed  upon 
by  nine  justices  of  the  Supreme .  Court,  all  of  whom 
agreed  that  the  injury  in  question  was  outside  the  com- 
pensation act  and  was  properly  the  subject  of  damages. 
It  must  be  accepted  as  the  law  in  relation  to  injuries  of 
this  character. 

Many  cases  have  arisen  in  which  actions  have  been 
commenced  to  recover  damages  for  injuries  which  have 
resulted  in  disfigurement.  These  actions  are  supported 
by  the  decision  in  the  Shinnick  case  and  also  derive  sup- 


DISFIGUREMENT    CASES  27 

port  from  the  amendment  to  the  State  constitution  un- 
der which  the  compensation  act  was  passed  by  the  Legis- 
lature. Literally  construed,  this  amendment  to  the  con- 
stitution authorizes  the  enactment  of  a  compensation 
statute  excluding  all  other  remedies  only  where  compen- 
sation is  provided  for  the  injury  in  question.  To  ex- 
clude the  damage  suit,  the  Legislature  must  provide  a 
substitute  in  the  shape  of  compensation.  The  term 
"compensation"  as  defined  by  subdivision  6  of  Section 
3  of  the  act,  does  not  include  the  medical  services  which 
the  employer  is  required  to  provide  under  Section  13, 
and  such  medical  services  are  not  considered  as  compen- 
sation. 

The  Shinnick  case  was  decided  July  9,  1915.  Four 
daj^s  later  the  Court  of  Appeals  handed  down  its  de- 
cision upholding  the  constitutionality  of  the  compensa- 
tion law  generally  in  the  Jensen  case  (215  N.  Y.  514). 
Although  the  point  was  not  squarely  decided,  the  de- 
cision of  the  Court  of  Appeals  may  be  construed  as  hold- 
ing that  the  compensation  law  is  exclusive  and  in  full 
substitution  for  any  action  for  damages,  even  though 
no  compensation  is  provided  for  the  specific  injury.  This 
view  of  the  decision  of  the  Court  of  Appeals  was  taken 
by  Supreme  Court  Justice  William  S.  Andrews  in  a 
decision  handed  down  in  Special  Term,  March  22,  1916, 
in  the  case  of  Michael  Connors  vs.  Semet-Solvay  Co., 
in  which  he  refused  to  follow  the  Shinnick  case.  In  the 
Connors  case  the  plaintiff  had  received  compensation 
and  then  sued  for  damages  for  disfigurement  and  pain 
and  suffering. 

Under  an  amendment  to  Section  15,  which  became  ef- 
fective June  1,  1916,  the  Commission  is  now  authorized 
to  award  compensation  for  injuries  resulting  in  serious 
facial  or  head  disfigurement  not  to  exceed  thirty-five 
hundred  dollars.  The  Shinnick  case  is,  therefore,  no 
longer  an  authority  in  support  of  an  action  to  recover 
damages  for  disfigurement  as  to  any  injury  occurring 
subsequent  to  June  1,  1916.  An  amendment  to  Section 
11  is  intended  to  make  the  law  exclusive  even  as  to  in- 
juries for  which  no  compensation  is  provided.     As  al- 


28  workmen's  compensation 

ready  pointed  out,  such  a  provision  is  ineffectual  under 
the  State  constitution. 

§  14.  Dependents  who  receive  no  compensation. 
As  pointed  out  in  Section  5,  the  compensation  where  the 
injury  results  in  death,  is  limited  to  the  dependents  men- 
tioned in  Section  16  of  the  compensation  law  and  many 
cases  will  arise  where  the  deceased  workman  leaves  de- 
pendent relatives  surviving  who  cannot  be  awarded  com- 
pensation under  the  act.  At  common  law  there  was  no 
right  of  action  where  the  death  of  a  person  was  due  to 
negligence.  The  right  was  first  created  by  Chapter  450 
of  the  Laws  of  1847  and  since  1895  a  provision  has  been 
contained  in  the  constitution  (Art.  1,  Sec.  18)  which 
prohibits  the  Legislature  from  abrogating  the  right  of 
action  to  recover  damages  in  death  cases.  The  constitu- 
tional amendment  (Art.  1,  Sec.  19)  under  which  the 
compensation  law  is  authorized,  provides  in  effect  that 
nothing  contained  in  the  constitution  shall  prohibit  the 
Legislature  from  the  enactment  of  a  law  requiring  the 
payment  of  compensation  without  regard  to  fault,  or  to 
limit  the  power  of  the  Legislature  "to  provide  that  the 
right  of  such  compensation  and  the  remedy  therefor  shall 
be  exclusive  of  all  other  rights  and  remedies  for  injuries 
to  employees  or  for  death  resulting  from  such  injuries." 

The  rule  is  well  settled  that  all  sections  of  the  constitu- 
tion must  be  construed  together  to  obtain  its  true  mean- 
ing and  when  Sections  18  and  19  are  both  considered,  it 
would  seem  to  follow  that  the  legislature  cannot  take 
away  the  right  to  recover  damages  in  death  cases  unless 
a  substitute  is  provided  therefor.  The  compensation 
law  is  exclusive  of  all  other  rights  and  remedies  as  to  the 
dependents  mentioned  in  Section  16,  but  the  right  to 
recover  damages  as  guaranteed  by  Section  18  of  the  Con- 
stitution, still  remains  as  to  the  dependents  for  whom 
compensation  is  omitted. 

In  the  case  of  Shanahan  vs.  Monarch  Engineering 
Co.,  156  N.  Y.  Supp.  143,  the  Supreme  Court  held  that 
damages  may  be  recovered  on  behalf  of  brothers  and 
sisters  who  are  the  only  next  of  kin  of  the  deceased  work- 
man.   It  was  held  that  the  compensation  law  makes  no 


DEPENDENTS    EECEIVING    NO    COMPENSATION  29 

provision  for  the  payment  of  any  benefit  to  the  surviving 
brothers  and  sisters  and  that  as  to  them,  the  right  to  sue 
for  damages  still  remains.  In  Matter  of  Friscia  vs. 
Drake  Brothers,  (Sec.  5  infra) ,  it  was  decided  that  com- 
pensation could  be  awarded  to  the  parents  of  a  deceased 
workman  notwithstanding  the  fact  that  he  left  him  sur- 
viving no  wife  or  children.  Under  this  decision  brothers 
and  sisters  under  18  years  of  age  would  be  entitled  to 
compensation  where  there  is  no  surviving  wife  or  chil- 
dren or  where  the  compensation  payable  to  surviving 
wife  and  children  does  not  equal  66  2/3%  of  the  aver- 
age weekly  wage  of  the  deceased.  The  Shanahan  case 
is  somewhat  contrary  to  the  Friscia  case,  but  it  is  re- 
garded as  an  authority  in  support  of  the  right  of  de- 
pendents to  sue  for  damages  in  all  cases  where  such  de- 
pendents receive  no  compensation.  It  may  frequently 
happen  that  a  child,  sister  or  brother  over  18  years  of 
age,  or  some  other  next  of  kin  not  named  in  the  statute, 
is  entirely  dependent  upon  the  deceased  workman  and 
will  suffer  serious  pecuniary  loss  by  his  death. 

Section  11  of  the  compensation  act  declares  the  liabil- 
ity for  the  payment  of  compensation  as  prescribed  by 
Section  10  shall  be  exclusive  and  in  place  of  any  other 
liability  whatsoever,  to  such  employee,  his  personal  rep- 
resentatives, husband,  dependents  or  next  of  Idn,  or  any- 
one otherwise  entitled  to  recover  damages,  at  common 
law  or  otherwise  on  accou7it  of  such  injury  or  death.  The 
part  in  italics  was  added  to  Section  11  by  the  amend- 
ments of  1916,  and  among  other  things  was  intended  to 
meet  the  decision  in  the  Shanahan  case.  While  the  lan- 
guage of  the  section  is  explicit,  it  will  doubtless  be  held 
unconstitutional  as  to  dependents  for  whom  no  benefits 
are  provided. 

§  15.  Injuries  received  by  office  employees.  Ac 
cording  to  a  ruling  made  by  the  State  Workmen's  Com- 
pensation Commission,  office  employees  who  work  at  the 
plant  where  a  hazardous  employment  is  conducted,  are 
within  the  protection  of  the  compensation  law;  and 
office  employees  who  work  in  a  separate  office  building, 
although  in  the  service  of  an  employer  carrying  on  a 


80  workmen's  compensation 

business  within  the  act,  are  not  within  its  protection. 
As  to  injuries  received  by  the  latter  class,  it  is  apparent 
that  the  employer  is  not  liable  for  compensation  and  that 
the  remedy  of  the  employee  is  to  sue  for  damages  if 
the  injuries  are  due  to  the  negligence  of  his  employer. 

The  ruling  of  the  Commission  in  relation  to  office  em- 
ployees where  the  office  is  located  at  the  plant  has  never 
been  passed  upon  by  the  Courts.  The  trend  of  decisions 
in  other  cases,  however,  would  seem  to  indicate  that  an 
office  employee  is  not  entitled  to  compensation  in  any 
event,  even  where  the  office  is  located  at  the  plant,  unless 
the  injury  can  be  traced  to  some  risk  of  the  hazardous 
employment.  In  the  Matter  of  DeVoe  vs.  New  York 
State  Railways,  169  App.  Div.  472;  155  N.  Y.  Supp.  12, 
the  Justice  writing  the  opinion  laid  down  the  rule  that 
the  compensation  law  did  not  apply  to  employees  gen- 
erally, even  of  a  particular  group,  but  only  while  the 
employee  was  engaged  in  the  hazardous  employment. 
The  following  quotation  from  the  opinion  in  this  case 
seems  to  clearly  indicate  that  the  employer  is  under  no 
obligation  to  pay  compensation  to  office  employees: 

"The  employee  of  a  street  railway,  for  instance, 
who  is  engaged  in  bookkeeping  or  in  running  er- 
rands or  in  doing  other  work  disconnected  with  the 
physical  operation  of  the  railroad,  would  not  be  'en- 
gaged in  the  following  hazardous  employment,'  nor 
would  he  be  entitled  to  compensation,  though  the 
accident  might  be  said  to  have  arisen  out  of  and  in 
the  course  of  his  employment  *  *  *.    The  question 
is,  not  whether  he  was  employed  by  a  street  railway 
corporation,  but  whether  he  was  engaged  in  the  fol- 
lowing hazardous  employments." 
§  16.     Officers  of  corporations.     In  nearly  all  juris- 
dictions it  has  been  decided  that  an  officer  of  a  corpora- 
tion is  not  an  employee  within  the  ordinary  definition  of 
the  latter  term  and  that  statutes  beneficial  in  character 
relating  to  "employees"  have  no  application  to  officers 
of  corporations.    The  Workmen's  Compensation  Com- 
mission was  advised  in  making  rules  for  the  interpreta- 
tion of  the  statute  that  the  distinction  between  the  term 


OFFICEES  OF   COEPOEATIONS  31 

"employer"  and  "employee"  as  used  in  the  compensa- 
tion law  was  similar  to  the  distinction  between  the  term 
"master"  and  "servant"  and  that  officers  of  corporations 
could  not  be  regarded  as  employees  within  the  meaning 
of  the  act.  This  rule  has  been  greatly  modified  in  prac- 
tice. 

In  all  cases  where  an  officer  of  the  corporation  was 
performing  work  of  a  character  usually  performed  by  a 
superintendent,  foreman,  mechanic  or  ordinary  work- 
man, the  officer  was  held  to  be  an  employee  and  entitled 
to  the  benefits  of  the  act.  Up  to  the  present  time,  these 
decisions  have  not  been  questioned  by  employers  or  in- 
surance carriers.  In  a  case  where  the  deceased  employee 
was  president  of  a  local  telephone  company  and  met  his 
death  while  performing  work  as  a  lineman,  the  widow 
was  awarded  compensation.^  In  another  case,  where  the 
employer  was  secretary  and  general  manager  of  the  com- 
pany, compensation  was  awarded  for  an  injury  received 
while  he  was  engaged  in  superintending  the  plant. ^  In 
still  another  case,  compensation  was  awarded  for  the 
amputation  of  fingers  due  to  an  injury  received  while 
the  officer  of  the  company  was  operating  machinery.'  A 
similar  rule  has  been  adopted  in  Connecticut,  where 
compensation  was  awarded  to  an  officer  who  received  in- 
juries while  acting  as  salesman  for  his  company. 

The  New  York  State  Industrial  Commission  has  also 
decided  that  the  ownership  by  the  injured  workman  of 
practically  all  of  the  stock  in  a  corporation  does  not 
preclude  him  from  receiving  compensation.  This  was 
held  in  the  Matter  of  Kennedy  vs.  Kennedy  Mfg.  &  En- 
gineering Co.  (The  Bulletin,  Vol.  1,  No.  5,  p.  12), 
decided  January  8,  1916,  in  which  the  injured  workman 
had  retired  from  the  office  of  president  and  was  acting 
as  consulting  engineer.  He  was  the  owner  of  all  but 
7^/^%  of  the  stock  of  the  company  and  it  was  decided 
that  his  ownership  of  practicall}^  the  entire  amount  of 
stock  did  not  change  his  status  as  an  employee  of  the 

^  Claim   No.   15410,  Matter  of  A.         » Claim     No.     42660,     Matter     of 
Foster  Brewster,  deceased.  Joseph  Clements. 

*  Claim  No.  6230,  Matter  of  John 
H.  Wagner. 


82  workmen's  compensation 

company.  In  this  case  an  award  of  compensation  was 
denied,  however,  because  he  continued  to  draw  his  regu- 
lar salary  notwithstanding  the  injury  and  suffered  no 
pecuniary  loss. 

§  17.  Damages  for  loss  of  services.  At  common 
law  in  the  case  of  an  injury  to  a  boy  or  girl  under  21 
years  of  age,  a  right  of  action  existed  on  behalf  of  the 
person  injured,  and  the  parents  had  another  and  separ- 
ate right  of  action  for  the  damages  sustained  by  them 
for  loss  of  services.  There  was  also  a  double  remedy  at 
common  law  in  the  case  of  an  injury  received  by  a  mar- 
ried woman.  She  had  the  right  to  sue  for  damages  for 
personal  injuries  and  the  husband  could  recover  for  the 
loss  of  her  services  and  for  medical  treatment. 

In  the  State  of  Massachusetts,  the  Supreme  Judicial 
Court,  in  the  case  of  King  vs.  The  Viscolloid  Co.,  210 
Mass.  420;  106  N.  E.  988,  decided  that  the  mother  could 
recover  damages  for  loss  of  services  notwithstanding  the 
fact  that  the  boy  who  was  injured  ha^  received  compen- 
sation under  the  Workmen's  Compensation  Law  of  that 
state.  It  was  also  held  that  a  provision  requiring  the 
employer  to  pay  medical  expenses  did  not  take  away  the 
parejits'  remedy,  but  only  reduced  the  amount  of  dam- 
ages which  the  parent  could  otherwise  recover. 

Section  10  of  the  Workmen's  Compensation  act  re- 
quires the  employer  to  pay  or  provide  compensation  ac- 
cording to  the  schedules  of  the  act  and  Section  11  makes 
this  liability  exclusive.  The  right  to  recover  damages 
for  loss  of  services  was  not  expressly  taken  away  until 
Section  11  was  amended  in  1916  and  damages  could  be 
recovered  for  loss  of  services  as  to  any  accident  which 
happened  prior  to  June  1,  1916.  The  question  is  not 
free  from  doubt  even  under  the  amended  law.  To  make 
the  act  entirely  exclusive  a  remedy  should  have  been 
provided  in  lieu  of  the  former  action  for  loss  of  services. 

§  18.  Occupational  diseases.  Only  accidental  in- 
juries can  be  made  the  basis  of  compensation.  The  use 
of  the  word  "accident"  excludes  what  is  known  as  occu- 
pational diseases,  which  include  lead  poisoning,  zinc  poi- 
soning and  any  injury,  such  as  an  injury  to  the  eye  or  the 


OCCUPATIONAL  DISEASES  33 

lungs,  which  is  not  due  to  some  particular  accident  but 
to  long  and  continued  exposure  to  some  condition  or 
hazard  under  which  the  work  is  being  performed.  In 
the  State  of  Massachusetts  where  compensation  is  not 
limited  to  accidental  injuries,  disability  from  lead  poi- 
soning was  held  compensatable^  but  under  the  New  York 
Act  all  claims  for  disability  due  to  occupational  diseases 
are  excluded. 

In  a  case  where  there  was  an  injury  to  the  eye  due  to 
the  fact  that  the  employee  was  required  to  work  before 
a  bright  light,  and  in  another  case  where  blood  poisoning 
was  contracted  from  dust  particles,  and  in  all  cases  of 
occupational  poisoning  compensation  was  denied  by  the 
New  York  Commissions.  In  the  following  cases,  which 
may  be  regarded  as  border  line  cases,  compensation  was 
allowed:  where  pulmonary  tuberculosis  was  caused  by 
falling  into  water  ;^  where  disability  was  due  to  freezing  f 
where  the  employee  died  as  a  result  of  a  disease  caused 
by  contact  with  poison  ivy;*  where  the  disability  was  due 
to  anthrax  contracted  through  an  abrasion  of  the  skin 
while  handling  wool;^  and  where  the  injured  workman 
became  insane  as  the  result  of  a  nervous  shock  received 
in  an  accident.*'  In  another  case  {31  after  of  McMurray, 
3  N.  Y,  St.  Dep.  Rep.  395)  compensation  was  awarded 
where  the  workman  died  from  heart  disease  due  to  ex- 
haustion from  overwork.  This  latter  case  would  proba- 
bly have  been  reversed  had  an  appeal  been  taken.  In 
all  of  the  other  cases  the  disability  was  traceable  to  a 
particular  event  which  brought  the  injury  within  the 
definition  of  the  term  "accidental." 

Although  compensation  is  not  payable  for  an  injury 
which  is  classed  as  an  occupational  or  industrial  disease, 
the  employer  is  liable  in  damages  if  the  injury  can  be 

*In  re  Hurle,  217  Mass.  223;  104  Matter  of  Cole,  4  N.  Y.  St.  Dep. 

N.  E,  336.  Rep.  348. 

In  re  Johnson,  217  Mass.  378;  104  *  Matter  of  Plass  vs.  Cent.  R.  R. 

N.  E.  735.  of  New  England,  169  App.  Div.  826; 

=■  Matter    of    Rist    vs.    Larkin    &  155  N.  Y.  Supp.  854. 

Sangster,    171    App.    Div.    108;    156  "Matter    of    Henry,    Claim     No. 

N.  Y.  Supp.  875.  65555,  State  Ind.  Com. 

"  Matter  of  Avlesworth  vs.  Phoenix  '  Matter  of  McMahon,  6  N.  Y.  St. 

Cheese  Co.,  8  N.  Y.  St.  Dep.  Rep.  Dep.  Rep.  109. 
383. 


84  workmen's  compensation 

traced  to  a  violation  of  law  or  to  lack  of  proper  safe- 
guards which  would  have  resulted  in  its  prevention.  The 
employer  would  be  liable  for  damages  where  pulmonary 
tuberculosis  is  contracted  by  reason  of  the  failure  to  pro- 
vide suitable  space  for  employees  in  violation  of  the 
Labor  Law.  So  also  the  employer  would  be  liable  at 
common  law  where  the  injury  or  disease,  although  due 
to  no  accident,  could  have  been  prevented  by  the  use  of 
proper  and  suitable  safeguards  or  appliances  for  carry- 
ing on  the  work. 

§  19.  Injuries  received  outside  the  State.  In  the 
Matter  of  Valentine  vs.  Smith  Angevine  Co.,  2  N.  Y.  St. 
Dep.  Re])'  401,  it  was  decided  by  the  Workmen's  Com- 
pensation Commission  that  compensation  was  payable 
where  the  injury  was  received  while  the  workman  was 
temporarily  in  another  state  in  the  course  of  his  employ- 
ment. This  decision  was  affirmed  in  Matter  of  Post  vs. 
Burger  cO  Gohlke,  168  App.  Div.  403;  153  N.  Y.  Supp. 
505;  216  N.  Y.  544.  The  Court  of  Appeals  held  that 
the  Legislature  intended  to  read  the  workmen's  compen- 
sation law  into  the  contract  of  employment  and  that  the 
employer  and  employee  are  bound  thereby  without  refer- 
ence to  the  place  where  the  injury  happens.  Attention 
was  called  to  the  wording  of  the  statute  under  which  the 
act  was  extended  to  injuries  which  happen  "away  from 
the  plant,"  and  it  was  decided  that  under  the  general 
purpose  of  the  law,  which  was  to  prevent  the  injured 
workmen  and  their  dependents  from  becoming  objects 
of  charity  and  to  make  the  compensation  a  part  of  the 
expenses  of  the  hazardous  business,  compensation  should 
be  payable  although  the  injured  workman  was  tem- 
porarily in  a  foreign  state  when  injured. 

Many  cases  will  arise  where  the  facts  are  different 
from  those  outlined  in  the  Post  case.  Since  this  decision, 
the  State  Industrial  Commission  has  denied  compensa- 
tion in  File  No.  291,  Lloyd  vs.  Power  Specialty  Co.,  a 
case  where  the  contract  of  hiring  was  made  in  New  York 
State  and  the  employee,  who  was  a  resident  of  New  Jer- 
sey, was  sent  to  West  Virginia  to  perform  work  in 
which  he  received  an  injury  which  proved  to  be  fatal.    It 


EXTRA-TERRITORIAL    CASES  35 

was  decided  by  the  Commission  that  the  fact  that  the 
contract  was  made  in  New  York  State  did  not  entitle 
the  dependents  of  the  injured  workman  to  compensa- 
tion. In  the  case  of  Gardner  vs.  Horsehead's  Construc- 
tion Co.,  171  A  pp.  Div.  66;  156  N.  Y.  Supp.  809,  de- 
cided by  the  Appellate  Division  in  January,  1916;  the 
accident  happened  at  the  employer's  plant  in  Pennsyl- 
vania. The  injured  workman  had  not  been  employed  in 
the  State  of  New  York  since  1912.  The  Court  revers- 
ing the  award,  decided  that  the  making  of  the  contract 
in  this  state  did  not,  of  itself,  entitle  the  claimant  to  com- 
pensation where  the  entire  work  was  to  be  performed  in 
the  state  of  Pennsylvania.  In  another  case,  Matter  of 
Pritz  vs.  Bauniont  (reversed  154  N.  Y.  Supp.  1140, 
without  opiiiion),  both  the  claimant  and  the  employer 
resided  in  New  York  State.  The  claimant  had  been 
working  in  this  State  but  had  left  his  employment  and 
was  subsequently  engaged  in  the  construction  of  a  build- 
ing. The  employer  had  given  no  security  for  the  pay- 
ment of  compensation  in  the  State  of  New  York  but  had 
insured  under  the  law  of  the  State  of  New  Jersey  as  to 
the  particular  job  in  question.  The  award  made  by  the 
Commission  was  reversed. 

Both  the  Gardner  and  the  Pritz  cases  were  decided 
before  the  Court  of  Appeals  had  rendered  its  decision  in 
the  Matter  of  Post.  They  seem  to  be  distinguishable, 
however,  and  it  seems  to  be  sound  reasoning  that  as  to 
jobs  which  are  to  be  completely  performed  in  another 
state,  the  employer  is  subject  to  the  law  of  the  state 
where  the  accident  happens,  at  least  where  the  employ- 
ment is  for  the  particular  work  alone.  The  plant  for  the 
purpose  of  such  cases  is  located  in  a  foreign  state,  which 
has  a  right  to  regulate  its  own  employments.  As  to  such 
cases,  employers  in  the  State  of  New  York  would  be 
subject  to  liability  under  the  laws  of  the  state  where  the 
accident  happens. 

Confusion  will  doubtless  arise  where  employees  of 
another  state  are  injured  while  temporarily  at  work  in 
New  York.  This  confusion  can  be  avoided  by  applying 
the  law  of  the  state  where  the  injured  workman  resides 


86  workmen's  compensation 

and  was  employed.  In  Massachusetts  it  has  been  held 
that  the  compensation  law  has  no  extra  territorial  effect^ 
and  an  employee  coming  from  Massachusetts  injured  in 
the  course  of  his  employment  in  this  state  would  be  en- 
titled to  compensation  or  damages,  as  the  case  may  be, 
under  our  laws.  On  the  other  hand,  it  has  been  decided 
in  Connecticut''  and  in  New  Jersey^  that  the  compensa- 
tion laws  in  each  of  those  states  apply  where  the  injury 
happens  outside  the  state.  It  would  be  the  duty  of  the 
Commission  and  of  the  courts  to  recognize  the  law  of 
Connecticut  and  New  Jersey  and  the  only  recourse  of 
the  Connecticut  or  New  Jersey  employee,  although  in- 
jured in  this  state,  would  be  the  compensation  provided 
by  his  own  state. 

Even  before  any  valid  compensation  law  was  in  force 
in  the  State  of  New  York,  the  Courts  of  this  state  gave 
recognition  to  compensation  laws  of  other  states  and 
countries  upon  the  legal  principle  that  the  law  of  the  place 
where  the  contract  of  employment  was  made  should  gov- 
ern, unless  the  foreign  law  is  contrary  to  the  policy  and 
the  fundamental  law  of  this  state.  This  was  decided  in 
the  case  of  Schwitzer  vs.  Hamburg-American  Line,  149 
A  pp.  Div.  900;  s.  c.  78  Misc.  448,  and  to  the  same  eifect, 
see  also  Albanese  vs.  Stewart,  78  Misc.  Rep.  (N.  Y.) 
581,  and  Pensahene  vs.  Auditor  Co.,  78  Misc.  538. 

§  20.  Admiralty  jurisdiction.  New  York  City  is 
the  greatest  seaport  in  America  and  more  laborers  are 
employed  in  New  York  State  in  connection  with  the 
operation  of  vessels  and  kindred  work  than  in  any  other 
state  in  the  Union.  The  Legislature  has  established 
three  groups  of  employees  engaged  in  this  class  of  work, 
to  which  the  compensation  law  has  been  made  applicable. 
They  are  Group  8,  relating  to  the  operation  of  vessels ; 
Group  9,  relating  to  shipbuilding,  including  construction 
and  repair;  and  Group  10,  longshore  work,  including  the 
loading  or  unloading  of  cargoes. 

Group  8  excludes  from  the  act  the  operation  of  vessels 

*  Gould's  case,  215  Mass.  480.  erage  Co.,  86  N.  J.  Law  J.  121. 

'  Kennerson  vs.  Thames  Towboat  Rounsaville  vs.  Central  R.  R.,  94 

Co.,  94  Atl.  Rep.  Conn.  872.  Atl.  Rep.  892. 
•Deeny  vs.  Wright  &  Cobb  Light- 


ADMIRALTY   JUEISDICTION OPTIONAL   REMEDIES  37 

of  other  states  or  countries  engaged  in  interstate  com- 
merce and  the  repair  of  such  vessels  when  the  work  is 
performed  by  the  owner.  Compensation  was  denied  by 
the  Commission  in  File  No.  259,  Coons  vs.  Kennedy 
Towing  Liiie  and  in  Claim  No.  47205,  Underwood  vs. 
International  Elevating  Co.,  two  cases  in  which  resi- 
dents of  New  York  met  their  deaths  while  New  Jersey 
vessels  were  being  operated  in  the  New  York  Harbor. 
New  York  State  vessels  are  made  subject  to  the  act 
whether  within  or  without  the  State,  following  the  well- 
established  doctrine  that  a  vessel  remains  a  part  of  the 
State  from  whence  it  hails  no  matter  where  it  may  be 
located*  and  the  compensation  law  has  been  held  to  apply 
where  the  accident  happened  upon  a  New  York  vessel 
lying  in  one  of  the  harbors  of  the  State  of  New  Jersey.^ 

Group  9  covers  shipbuilding  and  repairing  and  in- 
cludes the  repair  of  foreign  vessels  where  the  work  is 
carried  on  by  New  York  concerns.  An  employee  en- 
gaged in  the  repair  of  a  vessel  of  a  foreign  state  or  coun- 
try is  within  the  compensation  law  if  employed  by  a  New 
York  State  firm  but  not  when  employed  by  the  owner 
or  charterer  of  the  vessel. 

Group  10  covers  longshore  work,  including  loading 
and  unloading  of  ships  and  all  manner  of  handling  car- 
goes. By  placing  this  employment  in  a  separate  group 
it  is  distinguished  from  the  operation  of  vessels  so  that 
employees  performing  longshore  work  in  relation  to 
foreign  vessels  are  brought  within  the  act  no  matter  by 
whom  employed.^ 

In  creating  these  three  groups  the  Legislature  has  en- 
tered a  field  covered  to  a  large  extent  by  the  Maritime 
Law  and  has  brought  the  act  in  conflict  with  the  juris- 
diction of  the  Courts  of  Admiralty,  as  will  be  more  fully 
explained  in  the  next  section. 

§  21.  Admiralty  jurisdiction — Optional  remedy  of 
employees.     The  rule  is  well  established  under  Federal 

*  McDonald  vs.  MaUory,  77  N.  Y.  Lighterage  Co.,  168  App.  Div.  368; 

546.  163  N.  Y.  Supp.  391. 

Manning  vs.  International  Marine  'Matter   of   Jensen    vs.    Southern 

Co.,  212  Fed.  Rep.  933.  Pacific  Co.,  215  N.  Y.  614. 

'  Matter  of  Edwardson  vs.  Jarvis 


38  workmen's  compensation 

decisions  that  when  an  injury  takes  place  upon  navigable 
waters  of  the  United  States,  it  is  within  the  Admiralty- 
jurisdiction  of  the  Federal  Courts/  In  the  State  of 
Washington  it  has  been  decided  that  the  compensation 
act  has  no  application  to  employees  who  may  bring  a 
proceeding  in  Admiralty.^  In  New  York,  however,  it 
was  held  by  the  Court  of  Appeals  in  the  Matter  of 
Walker  vs.  Clyde  Steamship  Co.,  215  N.  Y.  529,  that 
employers  of  this  class  are  subjected  to  two  remedies, 
one  under  the  compensation  act  and  the  other  through  a 
suit  in  Admiralty.  In  this  decision,  it  was  pointed  out 
that  prior  to  the  enactment  of  the  compensation  law  a 
suitor  might  pursue  his  remedy  in  Admiralty  or  might 
resort  to  his  common  law  remedy  by  suit  in  either  State 
or  Federal  Court.  It  was  recognized  that  the  State 
could  not  interfere  with  the  Admiralty  jurisdiction,  cit- 
ing as  authorities,  The  Lottawanna,  21  Wall  558,  and 
Workman  vs.  New  York  City,  179  U.  S.  552,  and  the 
effect  of  the  decision  is  to  give  employees  who  may  be 
injured  on  a  vessel  the  option  of  either  taking  compensa- 
tion or  instituting  a  proceeding  in  Admiralty  to  recover 
damages.  The  nature  of  the  work  is  immaterial. 
Whether  the  employee  is  injured  while  engaged  in  the 
operation  of  a  New  York  vessel  under  Group  8,  in  the 
construction  or  repair  of  a  vessel  under  Group  9,  or  in 
longshore  work  under  Group  10,  if  the  accident  happens 
on  a  vessel  while  lying  in  navigable  waters  of  the  United 
States,  whether  under  navigation  or  moored  to  a  dock, 
the  injured  has  an  option  of  remedies.  This  rule  effects 
the  whole  shipping  industry  and  all  transportation  by 
water  in  the  New  York  Harbor,  in  the  Great  Lakes  and 
upon  the  Hudson  River  and  follows  New  York  vessels 
upon  the  high  seas  or  in  foreign  waters. 

An  injury  which  happens  on  land  is  not  subject  to 
Admiralty  jurisdiction  and  a  longshoreman,  while  work- 
ing on  shore  is  entirely  within  the  compensation  act,  but 
when  he  steps  on  the  vessel  in  the  discharge  of  the  same 
work  he  has  an  option  of  remedies.     This  subject  is 

'  Atlantic   Transport  Co.  vs.   Im-         '  State  Ex  Reel  Jarvis  vs.  Daggett, 
brovek,  284  U.  S.  62.  161  Pac.  Rep.  648. 


FEDERAL   EMPLOYERS   LIABILITY  ACT  89 

now  before  the  United  States  Supreme  Court  in  several 
eases.  If  the  decision  in  the  State  of  Washington  is  fol- 
lowed the  compensation  law  will  have  no  application 
where  the  accident  happens  on  a  vessel,  but  if  the  de- 
cision of  the  New  York  Court  of  Appeals  is  followed, 
the  employee  injured  on  a  vessel  will  retain  an  option  as 
to  his  remedies. 

§22.  The  Federal  Employers'  Liability  Act.— 
Railroad  employees.  A  law  was  passed  by  Congress, 
April  22,  1908,  which  is  known  as  the  Federal  Employ- 
ers' Liability  Act.  It  relates  to  common  carriers  by 
railroads  engaged  in  interstate  commerce  and  makes 
such  common  carriers  liable  for  injuries  due  to  negli- 
gence and  to  defects  in  railroad  ways,  machinery,  appli- 
ances, etc.  Having  this  Federal  law  in  mind,  the  Legis- 
lature inserted  Section  114  in  the  compensation  law. 
This  section  provides : 

"The  provisions  of  this  chapter  shall  apply  to 
employers  and  employees  engaged  in  intrastate,  and 
also  in  interstate  or  foreign  commerce,  for  whom  a 
rule  of  liability  or  method  of  compensation  has  been 
or  may  be  established  by  the  Congress  of  the  United 
States,  only  to  the  extent  that  their  mutual  connec- 
tion with  intrastate  work  may  and  shall  be  clearly 
separable  and  distinguishable   from  interstate   or 
foreign  commerce,"  *  *  * 
and  there  follows  a  provision  under  which  employers 
and  employees  engaged  in  interstate  commerce  may  elect 
to  come  within  the  Act. 

It  is  apparent  that  this  section  is  awkwardly  phrased 
and  this  was  recognized  by  the  Court  of  Appeals  in 
Matter  of  Jensen  vs.  Southern  Pacific  Co.  (Sec.  1, 
infra).  In  the  Jensen  case,  it  was  held  that  the  Legis- 
lature did  not  intend  to  confine  the  act  to  intrastate  work 
alone,  but  also  to  interstate  work,  except  as  to  injuries 
for  which  "a  rule  of  liability  or  method  of  compensation 
has  been  or  shall  be  established  by  the  Congress  of  the 
United  States."  It  was  held  that  the  words  "may  be" 
should  be  construed  in  the  same  sense  as  "shall  be."  In 
the  Jensen  case  the  Court  had  the  section  under  consider- 


40  workmen's  compensation 

ation  in  connection  with  common  carriers  by  vessels  and 
it  was  decided  that  the  Federal  Employers'  Liability  Act 
had  no  application  to  transportation  by  steamship  com- 
panies. The  application  of  the  compensation  law  to 
employees  of  railroads  engaged  in  interstate  commerce 
was  under  consideration  by  the  Court  of  Appeals  in 
Matter  of  Win  field  vs.  New  York  Central  R.  R.  Co., 
216  N.  Y.  284.  It  was  pointed  out  that  the  Federal 
Employers'  Liability  Act  is  confined  to  injuries  result- 
ing from  negligence  while  the  scope  of  the  compensation 
law  is  broader,  because  under  its  provisions  the  employee 
is  awarded  compensation  for  injuries  whether  they  result 
from  negligence  or  not ;  and  in  conclusion,  the  Court  of 
Appeals  decided: 

''In  so  far  as  employers  and  employees  working 
in  this  State  who  are  engaged  in  interstate  com- 
merce and  injuries  result  to  employees  which  are 
not  the  result  of  negligence  and  are  not  occasioned 
by  the  wilful  intention  of  the  employee  to  bring 
about  the  injury  or  death  of  himself  or  another,  or 
result  from  his  intoxication  while  on  duty,  Congress, 
not  having  legislated  upon  the  subject,  the  State 
statute  is  operative." 
Under  this  decision,  compensation  is  payable  to  em- 
ployees of  railroads  engaged  in  interstate  commerce  not 
only  when  the  injury  is  received  while  the  employee  is 
employed  in  intrastate  work,  but  also  while  engaged  in 
interstate  work  unless  caused  by  the  negligence  of  his 
employer.    A  similar  ruling  has  been  made  in  the  State 
of  New  Jersey,^  but  contrary  rulings  have  been  made 
under  the  compensation  law  in  the  State  of  California^ 
and  in  the  State  of  Illinois.^    As  the  decisions  by  the 
State  courts  are  conflicting,  the  question  will  not  be 
definitely  determined  until  passed  upon  by  the  United 
States  Supreme  Court,  which  now  has  under  considera- 
tion the  Winfield  case  construing  the  New  York  Act. 
Whatever  the  final  outcome  of  the  conflict  between  the 

*  Matter  of  Rounsaville  vs.  Central     Commission,  147  Pac.  Rep.  600. 
R.  R.,  94  Atl.  Rep.  892.  '  Stalev  vs.  111.  Central  R.  R.  Co., 

» Smith    vs.     Industrial    Accident      109  N.  E.  342. 


FEDERAL  EMPLOYERS  LIABILITY  ACT  41 

Federal  Act  and  the  compensation  statutes,  the  question 
as  to  what  constitutes  interstate  commerce  and  what 
facts  justify  a  recovery  under  the  Federal  Act  will  al- 
ways be  of  much  interest  to  railroad  employees  and  to 
the  legal  profession  generally.  The  most  recent  im- 
portant decision  of  the  Supreme  Court  of  the  United 
States  is  the  case  of  Shanks  vs.  Del.,  Lack.  &  Western 
R.  R.  Co.,  decided  January,  1916,  36  Sup.  Ct.  R.  188, 
affirming  the  New  York  Court  of  Appeals,  (214  N.  Y. 
413) .  It  was  there  held  that  an  employee  in  a  machine 
shop  operated  to  repair  locomotives  used  in  both  intra- 
state and  interstate  transportation  is  not  employed  in 
interstate  commerce  while  engaged  in  taking  down  and 
putting  into  a  new  location  in  the  shop  a  countershaft 
through  which  power  is  communicated  to  machinery  used 
in  the  repair  work.  It  was  accordingly  held  that  no  re- 
covery could  be  had  under  the  Federal  Act. 

The  leading  cases  in  the  Supreme  Court  of  the  United 
States  in  which  it  has  been  held  that  the  employment 
was  in  interstate  commerce  within  the  meaning  of  the 
Federal  Employers'  Liability  Act  are  the  following: 
where  a  car  repairer  is  replacing  a  drawbar  in  a  car  then 
in  use  in  interstate  commerce  ;*  where  a  fireman  is  walk- 
ing ahead  of  a  locomotive  and  piloting  the  same  through 
switches  for  the  purpose  of  attaching  the  locomotive  to 
an  interstate  train  ;^  where  a  workman  is  injured  while 
carrying  bolts  from  a  tool  car  to  a  bridge  regularly  used 
in  the  transportation  of  interstate  trains ;  for  repair  work 
on  the  bridge;*'  where  a  clerk  is  walking  through  a  rail- 
road yard  to  meet  an  interstate  train  for  the  purpose  of 
marking  cars  for  the  switch  crew  f  where  a  fireman,  after 
preparing  an  engine  to  take  out  a  train  in  interstate 
commerce  is  walking  across  adjacent  tracks  on  an  er- 
rand in  connection  with  his  work  f  where  a  brakeman  on 
a  train  made  up  of  interstate  and  intrastate  cars  is  assist- 

*  Second       Employers'       Liability      229  U.  S.  146. 

Cases,  223  U.  S.  1.  '  St.  Louis  S.  F.  &  T.  R.  R.  vs. 

"  Norfolk     &     West.     R.     R.  vs.       Seale,  229  U.  S.  156. 
Earnest,  229  U.  S.  114.  'No.  Carolina  R.  R.  vs.  Zachary, 

•  Pederson  vs.  D.  L.  &  W.  R.  R.,      232  U.  S.  248. 


42  workmen's  compensation 

ing  in  placing  the  latter  on  a  side  track  so  that  the  train 
may  proceed  with  the  interstate  cars.^ 

In  addition  to  the  Shanks  case  above  mentioned,  the 
leading  cases  in, which  it  was  held  that  the  requisite  em- 
ployments in  interstate  commerce  did  not  exist  are: 
where  a  member  of  a  switching  crew  is  engaged  in  han- 
dling a  train  of  cars  all  of  which  were  loaded  with  intra- 
state freight;"  where  an  employee  is  injured  in  a  coal 
mine  operated  by  a  railroad  company,  mining  coal  in- 
tended to  be  used  in  the  company's  locomotive  transport- 
ing interstate  commerce/^ 

An  interesting  line  of  cases  are  those  in  which  the 
injured  workman  was  employed  about  instrumentalities 
which  had  not  as  yet,  or  had  entirely  ceased  to  be  used 
in  interstate  commerce,  in  all  of  which  it  was  held  that 
the  Federal  Employers'  Liability  Act  did  not  apply." 
These  cases  follow  the  reasoning  of  the  Supreme  Court 
in  the  Pederson  case,  in  which  the  Court  said  it  was  not 
concerned  with  the  construction  of  tracks,  bridges,  en- 
gines or  cars  which  had  not  as  yet  been  used  in  inter- 
state commerce. 

Distinctions  between  interstate  and  intrastate  work 
are  sometimes  finely  drawn.  Generally  speaking,  how- 
ever, a  railroad  employee  is  within  the  protection  of  the 
Federal  Act  if  his  work  is  in  connection  with  the  right 
of  way  over  which  interstate  commerce  is  transported, 
such  as  the  roadbed  or  a  bridge,  or  in  connection  with 
locomotive  or  cars  while  drawing  interstate  commerce,  or 
while  temporarily  withdrawn  from  the  service  for  re- 
pairs. On  the  contrary,  as  was  decided  by  the  New 
York  Appellate  Division,  Third  Department,  in  the 
Matter  of  Parsons  vs.  Delaware  &  Hudson  R.  R.  Co., 
167  App.  D'w.  536;  153  N.  Y.  Supp.  179,  the  railroad 
employee  is  not  within  the  Act  while  working  on  a  loco- 
motive or  car  which  has  been  entirely  withdrawn  from 

•  N.  Y.  C.  &  H.  R.  R.  R.  vs.  Carr,  "  Bravis  vs.  C.  M.  &  St.  P.  R.  R. 

288  U.  S.  260.  Co.,  217  Fed.  Rep.  284. 

"  Illinois  Central  R.  R.  vs.  Behr-  Jackson  vs.  C.  M.  &  St.  P.  R.  R. 

ens,  288  U.  S.  478.  Co.,  210  Fed.  Rep.  496. 

"  D.  L.  &  W.  R.  R.  vs.  Yurkonis,  Thomas  vs.  B.  &  M.  R.  R.  Co.,  218 

288  U.  S.  489.  Fed.  Rep.  143. 


FEDERAL   EMPLOYERS   LIABILITY  ACT  48 

use  and  for  the  time  being  is  dismantled;  and  he  is  not 
under  the  Federal  act  while  working  upon  indirect  or  re- 
mote appliances  of  interstate  commerce,  nor  while  en- 
gaged entirely  in  connection  with  intrastate  work. 

As  stated  by  the  Court  of  Appeals  in  the  case  of  Bar- 
low vs.  Lehigh  Valley  R.  R.  Co.  214  N.  Y.  116,  re- 
ferring to  railroad  employees : 

"It  is  an  anomalous  situation  and  one  to  be  reme- 
died as  far  as  possible  by  legislation,  that  an  em- 
ployer's liability  to  his  employee  may  be  governed 
by  one  rule  at  one  moment  and  by  an  entirely  differ- 
ent rule  at  the  next,  though  the  employee  is  all  the 
time  engaged  in  precisely  the  same  kind  of  work." 
The  ordinary  street  surface  railroad  operated  in  a  city 
or  village  is  not  a  common  carrier  by  railroad  within  the 
meaning  of  the  Federal  Act.'^    An  interurban  electric 
railroad  which  carries  passengers,  freight,  express  or 
mail,  is,  liowever,  considered  as  a  common  carrier  by 
railroad,"  and  employees  of  such  electric  roads  are  with- 
in the  protection  of  the  Federal  Act  if  employed  in  inter- 
state commerce. 

A  railroad  which  extends  across  a  state  line  is  some- 
times engaged  in  intrastate  work  and  roads  entirely  with- 
in the  State  of  New  York  are  engaged  in  interstate  com- 
merce when  transporting  freight  destined  to  or  received 
from  another  state. 

A  railroad  employee  has  no  remedy  except  compensa- 
tion when  injured  while  at  intrastate  work,  and  under 
the  Winfield  case,  when  injured  while  working  in  con- 
nection with  interstate  commerce,  he  may  sue  for  any 
injury  due  to  negligence  and  have  compensation  when 
negligence  is  absent. 

§  23.  Independent  contractors.  An  independent 
contractor  is  defined  as  a  person  who  is  exercising  an 
independent  employment  and  agrees  to  perform  work 
according  to  his  own  method  without  subjecting  himself 

"U.   S.  vs.   Bait.   &  Ohio  S.  W.  Kansas  City  West.  R.  R.  Co.  vs. 

R.  R.  Co.,  226  U.  S.  14,  McAdow,  164  S.  W.  188,  affirmed  by 

"  Omaha  &  Council  Bluffs  vs.  Int.  the   U.  S.  Supreme  Court,  January 

St.  Commerce  Commission,  230  U.  S.  3,  1916.     (240  U.  S.  61.) 
824,  386,  837. 


44«  workmen's  compensation 

to  the  control  of  his  employer  except  as  to  the  result  of 
his  work.  The  circumstances  which  indicate  a  relation- 
ship to  be  that  of  an  independent  contractor  are : 

1.  The  independent  nature  of  the  business. 

2.  The  contract  to  perform  a  specific  piece  of  work. 

3.  The  contract  for  a  set  price. 

4.  The  employment  of  assistants. 

5.  The  furnishing  of  materials. 

6.  The  control  of  the  work  except  as  to  the  result. 
Taken  separately,  these  elements  are  not  conclusive  but 
when  all  are  present  the  relationship  is  that  of  an  inde- 
pendent contractor.  Each  case  must  be  decided  accord- 
ing to  the  facts  which  exist  but  the  control  over  the  work 
is  the  most  important  element.  In  the  case  of  Rhein- 
wald  vs.  Builders  Brick  c^  Supply  Co.  (Sec.  2  infra)  the 
injured  workman  had  a  written  contract  to  paint  a  sign 
under  which  he  guaranteed  the  work.  He  employed  no 
assistants  and  met  his  death  from  an  injury  which  he  re- 
ceived in  falling  from  a  ladder  while  doing  the  work. 
The  Workmen's  Compensation  Commission  by  divided 
vote,  held  that  the  deceased  workman  was  an  independ- 
ent contractor  and  denied  the  widow's  claim  for  compen- 
sation. This  decision  was  reversed  in  the  Appellate  Di- 
vision by  a  divided  Court  where  it  was  held  that  Rhein- 
wald  was  a  workman  and  entitled  to  the  benefits  of  the 
compensation  act.  An  award  of  compensation  has  since 
been  made  and  the  case  will  eventually  be  passed  upon 
by  the  Court  of  Appeals. 

In  Matter  of  Powley  vs.  Vivian  &  Co.,  169  A  pp.  Div. 
170;  134  N.  Y.  Supp.  Ji26,  the  injured  workman  had 
leased  a  dredge  to  his  employer  under  written  contract 
by  the  terms  of  which  he  retained  charge  over  its  opera- 
tion and  over  the  members  of  the  crew  who  were  em- 
ployees of  the  lessee.  It  was  held  that  the  claimant  was 
exercising  an  independent  calling  and  that  as  to  the  oper- 
ation of  the  dredge  he  was  not  an  employee.  An  award 
of  compensation  was  upheld,  however,  because  the  claim- 
ant at  the  time  of  the  accident  was  engaged  in  the  opera- 
tion of  a  launch  transporting  supplies  to  the  dredge — 
work  which  should  have  been  performed  by  his  employer. 


INDEPENDENT  CONTEACTORS  45 

It  is  evident  from  this  decision  that  an  independent  con- 
tractor may  also  at  times  be  regarded  as  an  employee. 
In  case  of  doubt  as  to  whether  the  workman  is  an  inde- 
pendent contractor,  compensation  insurance  should  be 
provided  for  should  it  develop  that  the  workman  was 
within  the  protection  of  the  compensation  law,  he  could, 
in  case  of  injury,  sue  for  damages,  in  which  event  the 
employer  would  be  deprived  of  the  defenses  of  contribu- 
tory negligence,  assumed  risk  and  negligence  of  fellow 
servants. 

Althpugh  one  may  be  doing  the  work  of  an  indepen- 
dent contractor  and  be  barred  from  the  benefits  of  the 
compensation  law,  the  person  for  whom  he  is  working  is 
still  under  the  obligation  to  exercise  diligence  and  care 
to  the  end  that  the  independent  contractor  may  not  re- 
ceive injury  while  in  the  course  of  his  employment.  In 
the  Bargey  case  (Sec.  11),  the  deceased  workman  had 
just  completed  an  independent  contract  for  repairs  upon 
the  building  in  which  the  accident  happened  and  at  the 
time  of  the  injury  was  working  by  the  day.  While  en- 
gaged upon  the  work,  the  floor  of  the  employers  prem- 
ises crashed  down  upon  his  head,  killing  him  instantly, 
and,  under  these  circumstances,  it  would  be  immaterial 
whether  he  was  an  independent  contractor  or  a  casual 
employee,  for  in  either  event  the  owner  of  the  building 
would  be  liable  in  damages  if  the  injury  was  due  to  his 
negligence. 

§  24.  Employees  injured  through  the  negligence  of 
third  persons.^  If  a  workman  entitled  to  compensa- 
tion is  injured  or  killed  by  the  negligence  of  another  not 
in  the  same  employ,  he  must,  or  in  case  of  death  his  de- 
pendents, must  elect  whether  to  take  compensation  or 
pursue  his  remedy  against  the  third  party  through  whose 
negligence  the  injury  was  occasioned.  Rule  51  was 
adopted  by  the  Commission  to  regulate  the  manner  in 
which  such  election  shall  be  made.  Under  this  rule,  if 
the  injured  workman  elects  to  take  compensation,  such 
election  is  made  by  filing  a  claim  for  compensation  with 
the  Commission  containing  an  assignment  of  the  cause 

*  Section  29  Workmen's  Compensation  Law, 


46  workmen's  compensation 

of  action  against  such  third  party  to  the  person  liable  for 
the  payment  of  compensation. 

In  an  action  brought  against  a  third  party  by  the  em- 
ployer or  insurance  carrier,  upon  the  assignment  of  the 
cause  of  action  made  by  the  injured  workman,  the  recov- 
ery is  limited  to  the  amount  of  compensation  paid  the 
injured  workman  by  the  party  bringing  the  suit.^  In 
England  it  has  been  held  that  the  legitimate  costs  and 
expenses  of  the  compensation  proceedings  may  be  re- 
covered in  addition  to  the  compensation  paid,^  and, 
doubtless,  this  rule  would  also  be  applied  under  the  New 
York  act.  The  defendant  in  such  an  action  may  set  up 
the  usual  defenses  in  negligence  cases  including  the  con- 
tributory negligence  of  the  employee  and  may  also  show 
that  the  compensation  was  not  paid  in  accordance  with 
the  statute.^ 

Where  the  injured  workman  or  his  dependents  elect 
to  sue  a  third  party,  the  employer  or  insurance  carrier 
is  only  liable  in  compensation  for  the  deficiency  between 
the  amount  recovered  against  the  third  party  and  the 
compensation  provided  by  the  act.  Under  the  rules  of 
the  Commission  where  compensation  is  to  be  claimed  for 
a  possible  deficiency  a  notice  of  election  to  sue  the  third 
party  must  be  filed  with  the  Commission  together  with 
a  claim  for  compensation,  which  is  held  in  abeyance  by 
the  Commission  vmtil  the  suit  is  determined.  It  was 
decided,  however,  in  the  case  of  Lester  vs.  Otis  Elevator 
Co.,  169  App.  Div.  613;  153  N.  Y.  Supp.  1058,  that  the 
injured  workman  may  maintain  a  suit  against  the  third 
partj'^  to  recover  damages  at  common  law  without  filing  a 
notice  of  election  with  the  Commission.  The  rules  of 
the  Commission,  therefore,  only  apply  where  claim  for 
compensation  is  to  be  made  for  the  deficiency  between 
the  amount  recovered  in  the  suit  and  the  amount  of  com- 
pensation provided  by  the  act.  In  England  it  has  been 
held  that  suit  for  damages  may  be  brought  against  a 
fellow  employee^  but  such  suit  cannot  be  brought  under 

*U.   S.   Fidelity   &   Guaranty  Co.  'Great    Northern    R.    R.    Co.    vs. 

vs.      New      York      Railways      Co.,  Whitehead,  4  B.  W.  C.  C.  89. 

Supreme    Court    App.    Term,    Jan.,  *  Thompson   vs.    N.   E.   M.   Co.,  6 

1916;  156  N.  Y.  Supp.  616.  W.  C.  C.  71. 


SUITS  AGAINST  THIRD  PARTIES  47 

the  New  York  act  as  the  injured  workman  only  has  this 
election  of  remedies  where  the  injury  was  caused  by  a 
person  "not  in  the  same  employ." 

Most  of  the  compensation  statutes  have  a  provision  in 
relation  to  injuries  of  this  character  similar  to  the  pro- 
visions of  Section  29  of  the  New  York  act.  In  the  state 
of  Washington  the  optional  remedy  of  the  employee  is 
confined  to  injuries  received  "away  from  the  plant"  and 
in  the  case  of  Northern  Pacific  Railway  Co.  vs.  Mary  A. 
Meese,^  it  was  decided  that  the  compensation  law  was  the 
only  remedy  for  an  injury  received  at  the  plant  although 
it  was  caused  by  the  negligence  of  a  third  party. 

If  compensation  is  claimed  in  addition  to  the  amount 
recovered  from  the  third  party,  a  compromise  of  the  suit 
brought  by  the  workman  or  his  dependents  at  an  amoimt 
less  than  the  compensation  provided  b  ythe  act  cannot 
be  made  except  with  the  written  approval  of  the  Com- 
mission if  the  deficiency  of  compensation  is  payable  from 
the  State  Fund,  and  otherwise  with  the  written  approval 
of  the  person,  association  or  corporation  liable  to  pay 
the  same.  This  provision  of  the  act  does  not,  however, 
prevent  a  compromise  if  the  workman  or  his  dependents 
make  no  claim  for  compensation  in  addition  to  the 
amount  of  the  settlement.  In  a  case  where  the  injury 
was  due  to  a  collision  between  a  trolley  car  and  a  wagon 
at  a  street  crossing  in  which  the  driver  of  the  wagon 
signed  a  release  exonerating  the  railroad  company,  it 
was  held  that  such  a  release  did  not  bar  the  claim  for 
compensation  made  by  the  injured  workman,  and  that 
the  release  would  not  prevent  the  insurance  carrier  from 
prosecuting  the  assigned  claim  of  the  injured  workman 
against  the  third  party.^  An  infant,  sui  juris  may  sue 
a  third  party  under  Section  29  without  the  appointment 
of  a  guardian  Ad  I  At  em. ^ 

Since  the  rules  of  procedure  were  adopted  by  the  Com- 
mission for  proceedings  in  cases  of  this  character,  the 

•Smith  Dock  Co.  vs.  Readhead,  5  Conklin    &   Sons,    App.    Div.    Third 

B.  W.  C.  C.  449.  Dept.      March   8,    1916;    157    N.   Y. 

•289  U.  S.  614;  206  Fed.  222;  211  Snpp.  948. 

Fed.  254,  '  Herkey  vs.   Agar   Mfg.  Co.,   158 

'Matter  of  Woodvrard  vs.  E.  W.  N.  Y.  Supp.  369;  90  Misc.  457. 


48  workmen's  compensation 

compensation  law  was  amended,  requiring  that  the  claim 
for  compensation  should  first  be  presented  to  the  em- 
ployer. Because  of  this  amendment  the  notice  of  elec- 
tion to  sue  a  third  party  and  the  claim  for  compensation 
for  deficiency  should  be  filed  with  the  employer  as  well 
as  with  the  Commission. 


PART  II. 

COMPENSATION  AND  LIABILITY 
INSURANCE. 


Sec.  25. 

26. 

27. 

28. 

29. 

30. 

31. 

PART  II 

COMPENSATION  AND  LIABILITY 
INSURANCE. 

Security  for  payment  of  compensation. 

Self-insurance. 

Insurance  by  Stock  Companies  and 

Mutual  Associations. 
The  State  Insurance  Fund — Coverage. 
State  Insurance  Fund — Release  from 

payment  of  compensation. 
State  Insurance  Fund — Immunity. 
Administration  of  the  State  Insurance. 

Fund. 

§  25.  Security  for  payment  of  compensation. 
Every  employer  subject  to  the  compensation  law  is  re- 
quired, under  the  provisions  of  Section  50  to  give  se- 
curity for  the  payment  of  compensation.  This  security 
may  be  given  by  insuring  with  the  State  Insurance 
Fund,  with  a  stock  corporation  or  a  mutual  association 
authorized  to  write  workmen's  compensation  insurance, 
or  by  furnishing  satisfactory  proof  to  the  Commission 
of  financial  ability  to  pay  compensation  directly  without 
insuring.  The  State  Fund,  stock  companies,  mutual 
associations  and  self-insurers  are  defined  as  "insurance 
carriers."  (Sec.  3,  subd.  12.)  Every  insurance  policy 
issued  by  a  stock  or  mutual  company  to  insure  an  em- 
ployer against  liability  to  his  employees  must  also  cover 
liability  to  pay  compensation  (Sec.  54,  subd.  4)  and  the 
injured   workman   may  have   recourse   to   the   policy, 

61 


52  workmen's  compensation 

through  the  Commission,  to  enforce  payment  of  com- 
pensation. (Sec.  54,  siibd.  1.)  Failure  to  give  security 
for  the  payment  of  compensation  makes  the  employer 
liable  to  a  penalty  in  a  sum  equal  to  the  premium  paya- 
ble to  the  State  Fund  and  enables  the  injured  workman 
or  his  dependents  to  sue  for  damages. 

Under  Section  50  the  method  by  which  the  employer 
shall  give  security  for  compensation  is  purely  optional. 
In  some  of  the  decisions  a  different  rule  has  been  laid 
down  from  which  it  might  appear  that  the  compensation 
act  was  intended  to  establish  a  system  of  state  insurance. 
In  the  case.  Matter  of  McQueeney  vs.  Sutphen  &  Meyer, 
167  App.  Div.  528;  153  N.  Y.  Supp.  55^,  it  was  first 
intimated  that  the  law  should  be  construed  on  the  theory 
that  it  contemplates  insurance  in  the  State  Fund.  The 
Court  had  under  consideration  the  presumptions  created 
in  favor  of  the  injured  workman  by  Section  21  of  the 
act.  The  point  at  issue  in  the  case  was  whether  the  em- 
ployee was  injured  while  engaged  in  a  hazardous  occu- 
pation. The  employer's  business  consisted  of  the  sale 
of  plate  glass  and  also  the  manufacture  of  glass  prod- 
ucts. The  Court  said  that  as  against  the  State  Fund  the 
injury  would  be  assumed  to  be  within  the  law  unless 
otherwise  sho^^n  and  that  where  an  employee  is  engaged 
in  an  employment  declared  hazardous,  but  at  times  works 
in  a  non-hazardous  employment,  the  injury  must  be  con- 
sidered within  the  act  if  the  employer  fails  to  show  all  of 
the  facts.  It  was  held  that  employers  who  are  self-in- 
surers or  who  insure  otherwise  than  in  the  State  Fimd, 
should  be  governed  by  the  same  rule  and  the  award  as 
made  by  the  Commission  against  the  employer  and  the 
insurance  company  was  affirmed. 

In  another  case,  Matter  of  Winfield  vs.  New  York 
Central  R.  R.  Co.,  168  App.  Div.  351;  153  N.  Y.  Supp. 
409,  in  which  the  Court  has  under  consideration  the  ap- 
plication of  the  statute  to  railroad  employees,  it  was 
stated  that  "the  Legislature  evidently  intended  to  take 
care  of  the  workman  through  a  state  system  of  insur- 
ance." In  arriving  at  this  conclusion,  the  Court  evi- 
dently overlooked  the  provisions  of  Section  25  of  the  act 


SECURITY  FOR  COMPENSATION  58 

relating  to  the  payment  of  compensation.  In  one  por- 
tion of  the  opinion,  the  Court  said,  "The  State  Insurance 
Fund  makes  the  compensation  to  the  injured  employee," 
and  in  another  place,  "The  self -insurer,  the  company  or 
the  association  pays  the  losses  to  the  Fund.  The  Fund, 
in  all  cases,  through  the  Commission,  makes  the  compen- 
sation to  the  employee."  As  a  matter  of  fact.  Section 
25,  at  the  time  this  decision  was  rendered,  required  pay- 
ment of  compensation,  except  where  the  employer  was 
insured  in  the  State  Fund,  directly  to  the  Commission 
and  the  Commission  was  authorized  to  disburse  the  same 
to  the  injured  workman.  The  same  section  also  author- 
ized the  Commission  to  require  from  employers  and  in- 
surance companies  deposits  with  the  Commission  for  the 
purpose  of  paying  compensation  therefrom.  This 
method  was  strictly  followed  by  the  Commission  until 
Section  25  was  amended  by  Chapter  167  of  the  Laws 
of  1915,  since  which  time  compensation  is  paid  directly 
by  the  employer.  As  the  law  now  stands,  the  obligation 
is  on  the  employer  to  pay  the  compensation  in  the  first 
instance  and  he  is  reimbursed  by  the  insurance  carrier 
whether  it  be  the  State  Fund  or  an  insurance  company. 
In  practice,  payments  are  usually  made  directly  by  the 
insurance  carrier.  The  only  reference  to  the  State  Fund 
in  connection  with  awards  against  self-insurers  and  in- 
surance companies  is  contained  in  Section  27,  under 
which,  if  the  nature  of  the  injurj^  makes  it  possible  to 
compute  the  present  value  of  future  payments  with  due 
regard  for  life  contingencies,  the  Commission  may,  in  its 
discretion,  require  the  employer  or  insurance  carrier  to 
pay  into  the  State  Fund  an  amount  equal  to  the  present 
value  of  the  unpaid  installments  of  compensation.  Such 
payments,  however,  are  made  in  trust  and  the  Fund  thus 
created  is  separate  and  apart  from  the  State  Insurance 
Fund  consisting  of  premiums  paid  by  employers.  So 
far  the  provisions  of  Section  27  have  not  been  resorted  to 
by  the  Commission  and  no  trust  fund  has  been  created. 

The  effect  of  the  different  forms  of  insurance  and  the 
protection  which  the  employer  receives  against  other 
forms  of  liability  is  treated  in  the  sections  which  follow. 


64  woekmen's  compensation 

§  26.  Self -insurance.  Where  the  employer  fur- 
nishes satisfactory  proof  to  the  Commission  of  financial 
ability  to  pay  compensation  without  insuring,  the  Com- 
mission requires  a  deposit  of  securities  of  the  kind  pre- 
scribed in  Section  13  of  the  Insurance  Law.  The  amount 
of  securities  has  been  fixed  by  the  Commission  in  a  sum 
equal  to  the  premium  which  the  employer  would  pay  to 
the  State  Fund  for  a  period  of  six  months,  with  the  mini- 
mum of  $5,000.  This  class  of  employers  are  known  as 
self-insurers  and  are  included  within  the  term  "insur- 
ance carrier."  Commencing  July  1,  1916,  and  annually 
thereafter  they  will  be  required  to  pay  a  proportionate 
share  of  the  expense  incurred  by  the  State  in  the  ad- 
ministration of  the  workmen's  compensation  law.  The 
employer  who  gives  security  for  the  payment  of  com- 
pensation by  becoming  a  self-insurer,  assumes  the  entire 
responsibility  for  the  payment  of  compensation.  He 
may,  however,  guard  against  catastrophe  losses  by  re- 
insurance. Compensation  is  paid  directly  to  employees 
by  self-insurers  except  where  the  future  installments  are 
commuted  into  one  lump  sum  and  paid  to  the  State 
Fund  in  trust,  in  which  event  self-insurers  become  re- 
lieved from  further  liability.  About  250  employers  have 
become  self-insurers  under  the  New  York  law.  They 
include  nearly  all  the  large  railroad  corporations  and 
many  of  the  largest  industries  of  the  state. 

§  27.  Insurance  by  Stock  Companies  and  Mutual 
Associations.  Insurance  with  a  stock  company  or  a 
mutual  association  not  only  protects  the  employer 
against  the  payment  of  compensation  but  against  all 
other  forms  of  liability  for  injuries  received  by  employ- 
ees. This  protection  is  afforded  through  a  standard  form 
of  insurance  policy  which  covers  employees,  whether  sub- 
ject to  the  compensation  act  or  outside  of  its  provisions. 
An  exception  is  the  liability  for  damages  for  an  injury 
received  by  a  person  employed  contrary  to  the  provi- 
sions of  the  Labor  I^aw.  Where  a  minor  is  employed  in 
violation  of  Section  70  of  the  Labor  Law,  women  and 
children  in  violation  of  Section  93  or  Section  131,  and  an 
injury  is  received,  the  fact  that  the  injured  workman 


STOCK  AND  MUTUAL  INSURANCE  66 

was  employed  in  violation  of  the  provisions  of  one  of 
these  sections  establishes  a  prima  facie  case  of  negli- 
gence/ The  owner  of  a  building  is  also  held  liable  where 
he  fails  to  provide  fire  escapes  as  required  by  the  Labor 
Law.^  If  an  employee  injured  under  these  conditions  is 
engaged  in  a  hazardous  employment  and  is  within  the 
compensation  act,  the  stock  or  mutual  company  must 
pay  the  compensation ;  but  where  the  case  is  outside  the 
act  and  damages  are  recovered  for  negligence,  the  policy 
of  insurance  does  not  protect  the  employer.^ 

The  standard  form  of  workmen's  compensation  and 
liability  insurance  policy  does  not  protect  the  employer 
against  public  liability.  If  he  desires  to  be  indemnified 
against  liability  to  the  public,  he  must  take  additional 
insurance. 

Mutual  Associations  are  incorporated  under  Article 
5a  of  the  Insurance  Law  (Chapter  832,  Laws  of  1913) 
with  authority  to  carry  on  the  business  of  insurance  on 
the  mutual  plan.  While  the  mutual  companies  were 
principally  intended  to  insure  the  payment  of  compensa- 
tion, they  insure  against  liability  to  employees  generally 
and  are  authorized  to  insure  against  liability  to  the  pub- 
lic. Under  the  mutual  plan,  the  employer  is  charged 
the  same  rate  of  insurance  as  with  a  stock  company. 
Should  there  be  a  surplus  after  the  payment  of  losses  and 
the  setting  up  of  the  necessary  reserves,  the  mutual  asso- 
ciation may  declare  a  dividend,  subject  to  the  approval 
of  the  Insurance  Department.  If  the  premiums  are  not 
sufiicient  to  pay  the  losses  and  establish  the  necessary 
reserves,  employers,  who  are  members  of  the  association, 
may  be  assessed  to  make  up  the  deficiency. 

The  experience  of  the  past  fifty  years,  in  connection 
with  mutual  insurance,  has  shown  that  in  practice,  it  is 
sometimes  deceptive  and  unsound.  The  transaction  of 
the  business  of  insurance,  in  order  to  make  the  contract 
absolutely  secure,  involves  the  creation  of  surplus  funds 

'  Goetz  vs.  Duffy,  215  N.  Y.  63.  *  Gallenkamp  vs.  Garvin  Co.,  179 

*  Mason-Henry    Press    vs.    Aetna  N.  Y.  588. 

Life  Ins.  Co.,  211  N.  Y.  489.  Marino  vs.  Lehmier,  173  N.  Y.  630. 

Holland    Laundry    vs.    Travellers  Koaster  vs.  Rochester  Candy  Co., 

Ins.  Co.,  166  App.  Div.  621.  194  N.  Y.  92. 


66  workmen's  compensation 

to  provide  against  unforeseen  contingencies  and  in  this 
respect  the  stock  companies  are  superior  to  mutual  asso- 
ciations. The  object  of  the  mutual  association  is  to  se- 
cure compensation  and  liability  insurance  at  cost.  It  is 
supposed  to  bring  the  emploj^ers  together  with  the  result 
that  co-operation  is  secured,  to  the  end  that  better  condi- 
tions of  safety  may  be  provided  for  employees.  There  is 
always  the  possibility  of  assessment  in  case  the  associa- 
tion has  insufficient  funds  to  meet  its  losses  and  the  em- 
ployer does  not  know  the  exact  extent  of  his  liability. 
In  the  case  of  a  stock  company  there  is  no  assessment  or 
liability  beyond  the  premium  paid  on  the  part  of  the 
policyholder,  because,  in  addition  to  the  reserve  set  up, 
the  company  also  provides  the  safeguard  of  its  capital 
and  surplus. 

As  the  mutual  associations  do  not  pay  any  commis- 
sions to  agents,  the  cost  of  operating  is  low.  Each  mem- 
ber of  the  association  acts,  to  some  extent,  as  an  agent 
in  soliciting  new  members,  but  as  this  is  outside  of  the 
employer's  regular  business,  it  is  not  always  of  any  ad- 
vantage either  to  the  employer  or  to  the  association. 
Mutual  associations  in  the  State  of  New  York,  transact- 
ing workmen's  compensation  insurance,  have  been  in 
existence  less  than  two  years  and  in  cases  where  the 
premium  income  is  sufficiently  large  to  make  the  expense 
ratio  small,  some  of  them  have  made  an  apparent  suc- 
cess. Nearly  all  the  mutual  insurance  companies  in  the 
State  were  permitted  to  declare  a  dividend  of  20  per  cent, 
after  their  first  year. 

One  of  the  advantages  of  the  stock  company  over  the 
mutual  association  rises  from  the  fact,  as  stated  above, 
that  the  stock  company  assumes  the  entire  liability  while 
with  the  mutual  association,  the  employer  has  the  possi- 
bility of  an  assessment  to  make  good  deficiencies  in  case 
of  catastrophe  or  other  imanticipated  losses.  The  stock 
company  absolutely  relieves  the  insured  from  all  re- 
sponsibility while  in  the  case  of  the  mutual  association, 
the  assured  is  not  only  operating  his  own  industry  but 
is  also  engaged  in  the  insurance  business,  a  combination 
which  sometimes  does  not  work  out  satisfactorily  in  prac- 


STATE  INSURANCE COVERAGE  67 

tice.  A  stock  company  has  back  of  it  the  experience 
under  employers'  liability  insurance  and  has  been  taught 
the  necessity  for  accumulating  an  ample  reserve  and 
surplus.  By  operating  on  a  large  scale,  it  is  enabled  to 
obtain  a  satisfactory  average  of  losses.  At  the  present 
time,  stock  companies  are  transacting  over  three-quarters 
of  the  entire  workmen's  compensation  business. 

The  employer  is  not  relieved  from  liability  under 
either  the  stock  or  mutual  plan  until  the  compensation 
has  been  paid  by  the  insurance  company.  In  this  respect 
stock  or  mutual  insurance  differs  from  insurance  with 
the  State  Fund,  where  the  only  recourse  of  the  injured 
workman  is  against  the  fund  itself  and  the  employer  is 
under  no  liability  to  pay  compensation.  However,  it 
will  be  understood  that  the  State  Insurance  Fund  gives 
no  insurance  against  employers'  liability,  but  merely 
covers  workmen's  compensation.  Both  stock  and  mutual 
companies  guard  against  catastrophe  losses,  with  rein- 
surance or  by  providing  special  reserves. 

The  obligation  of  the  employer  to  pay  for  medical 
treatment  for  60  days  after  the  injury  is  covered  by  the 
State  Fund  and  by  stock  corporations  and  mutual  asso- 
ciations alike,  and  if  the  employer  desires  to  assume  this 
obligation  himself  a  discount  of  20  per  cent,  is  given  on 
the  premiums. 

§  28.  The  State  Insurance  Fund — Coverage.  The 
State  Insurance  Fund  is  established  by  Article  5  of  the 
Workmen's  Compensation  Law.  Insurance  with  the 
State  Fund  only  protects  the  employer  against  the 
payment  of  compensation.  This  is  made  obvious  by  re- 
ferring to  Section  90  of  the  act  under  which  the  State 
Fund  is  created  "for  the  purpose  of  insuring  employers 
against  liability  under  this  chapter  and  of  assuring  to 
the  persons  entitled  thereto  the  compensation  provided 
by  this  chapter,"  and  from  the  standard  form  of  policy 
issued  by  the  State  Insurance  Fund  which  insures 
"against  liability  under  Chapter  816  of  the  Laws  of 
1913,  known  as  the  workmen's  compensation  act  and  un- 
der any  amendments  thereof,  heretofore  or  thereafter 
adopted." 


68  workmen's  compensation 

INCOMPLETE  PROTECTION  BY  STATE  INSURANCE  FUND. 

There  has  been  pointed  out  in  Part  I  of  this  work 
many  instances  where  the  employer  is  liable  in  a  suit  for 
damages  entirely  apart  from  workmen's  compensation. 
Many  employers  find  themselves  with  some  employees 
who  are  subject  to  the  act,  some  not  subject  thereto, 
and  others  doubtful.  In  some  cases  the  compensation 
law  fails  to  provide  for  the  employment  and  in  other 
cases  it  fails  to  provide  compensation  or  death  benefits 
for  the  injury.  Liability  still  exists  in  all  of  these  cases, 
sometimes  under  the  common  law  and  sometimes  under 
Employers'  Liability  Acts.  There  is  also  liability  in  Ad- 
miralty as  to  the  operation  of  vessels,  and  under  the 
Federal  Employers'  Liability  Act,  where  the  employer 
is  doing  the  business  of  a  common  carrier  by  railroad 
and  transporting  or  handling  interstate  commerce.  As 
to  all  of  the  forms  of  liability  described  in  the  first  part 
of  this  work,  aside  from  compensation,  the  State  Insur- 
ance Fund  gives  no  protection  to  the  employer. 

The  limited  application  of  the  compensation  act  and 
the  need  of  combination  insurance  to  fully  protect  an 
employer  is  one  of  the  most  serious  objections  against 
state  compensation  insurance.  To  meet  this  objection, 
a  resolution  was  adopted  by  the  Commission  when  the 
law  fu-st  went  into  operation,  reciting  that  all  employees, 
where  a  hazardous  employment  is  being  conducted, 
would  be  considered  within  the  meaning  of  the  Act,  and 
would  be  held  by  the  Commission  to  come  within  its  pro- 
visions. This  resolution  has  no  legal  effect.  In  the  case 
of  Tomassi  vs.  Christensen,  171  A  pp.  Div.  284;  156 
N.  Y.  Supp.  905,  decided  January,  1916,  the  Court  held 
that  "it  was  the  duty  of  the  Legislature  and  not  of  the 
Commission  or  of  this  Court  to  determine  what  employ- 
ments are  hazardous,"  and  in  the  Matter  of  DeVoe  vs. 
New  York  State  Railways,  169  App.  Div.  472;  155 
N.  Y.  Supp.  12,  the  Court  held  that  the  statute  "is  not 
to  be  extended  by  implication  to  accidents  not  clearly 
within  the  language  of  the  Act."  The  Commission  can 
only  exercise  such  powers  as  are  conferred  by  statute 


STATE  INSURANCE COVEEAGE  69 

and  while  the  Commission  is  given  wide  latitude  in  de- 
termining claims  for  compensation,  it  cannot  extend 
the  benefits  of  the  Act  to  employments  which  are  not 
within  its  provisions  nor  to  employees  who  are  not  en- 
titled to  its  benefits.  Like  any  other  administrative 
body,  the  Commission  must  reh'^  upon  the  construction 
of  the  law  as  laid  down  by  the  Courts. 

The  State  Fund  covers  payment  of  compensation  to 
all  employees  whether  legally  employed  or  not  and  com- 
pensation is  paid  by  the  State  Fund,  although  the  injury 
is  due  to  a  violation  of  the  Labor  Law.  The  State  is, 
therefore,  through  one  department,  placed  in  the  anoma- 
lous position  of  prosecuting  employers  for  violations 
of  the  Labor  Law  and  at  the  same  time  protecting  them 
against  suits  and  the  payment  of  compensation  for  in- 
juries due  to  such  violations. 

The  elective  provisions  of  the  Act,  added  to  Section  2 
by  the  Amendments  of  1916,  if  taken  advantage  of  by 
employers  and  employees,  will  bring  all  employees  with- 
in the  act  without  regard  to  the  work  carried  on  by  the 
employer  or  the  duties  of  the  employee,  and  to  this  ex- 
tent will  permit  the  State  Insurance  Fund  to  give  better 
protection  to  the  employer  than  formerly. 

§  29.  State  Insurance  Fund — Release  from  pay- 
ment of  compensation.  The  State  Insurance  Fund 
was  created  to  provide  the  industries  of  the  State  with  in- 
surance at  the  lowest  cost  consistent  with  political  man- 
agement of  business  affairs  and  to  provide  a  safe  method 
of  assuring  to  injured  workmen  compensation  for  indus- 
trial injuries.  The  rates  of  insurance  for  the  State  Fund 
are  determined  by  the  Commission  and  operate  as  a 
check  upon  the  rates  charged  by  stock  and  mutual  com- 
panies, which  are  under  no  limit  except  that  a  minimum 
has  been  established  by  the  Insurance  Department  be- 
low which  stock  and  mutual  companies  are  not  permit- 
ted to  accept  insurance  risks. 

The  chief  advantage  which  the  employer  secures  by 
insuring  in  the  State  Fund  is  the  release  from  liability  to 
pay  compensation.  This  release  from  liability  is  afforded 
by  Section  53  of  the  Act  under  the  terms  of  which  a  per- 


60  workmen's  compensation 

son  entitled  to  compensation  for  personal  injuries  has 
recourse  only  to  the  State  Fund.  The  same  section  pro- 
vides that  an  employer  who  does  not  contribute  premiums 
to  the  State  Fund  shall  not  be  relieved  from  liability  to 
pay  compensation  except  by  payment  thereof  by  himself 
or  his  insurance  carrier.  The  experience  under  the 
State  Insurance  Fund  in  New  York  State  has  so  far 
only  embraced  a  period  of  eighteen  months.  The  history 
of  State  insurance  in  some  of  the  other  states  demon- 
strates that  at  times  need  will  exist  for  additional  funds 
because  of  unexpected  losses  and  depleted  surplus.  There 
is  always  danger  of  a  catastrophe  which  might  impose  a 
heavy  burden  upon  the  State  Fund  and  no  provision  is 
made  for  reinsurance  to  protect  against  such  catastrophe 
losses. 

Although  Section  53  releases  the  employer  from  lia- 
bility to  pay  compensation,  a  different  question  will  be 
presented  if  the  Fimd  becomes  unable  to  meet  the  claims 
of  injured  workmen.  There  is  no  provision  in  the  Act 
authorizing  assessment  against  employers  except  that 
contained  in  Section  100  relating  to  employers  who  with- 
draw from  the  Fund  and  which  provides  that  the  em- 
ployers' liability  to  assessment  shall  continue  for  one 
year  after  the  date  of  withdrawal  as  against  all  liabilities 
accruing  prior  to  that  time. 

STATE    INSURANCE   FUND'S   RATES    MAY    BE   READJUSTED, 
INCREASING  EMPLOYERS'    CHARGES. 

The  attorney-general,  in  an  opinion  dated  July  16, 
1915,  ruled  that  Section  100  does  not  authorize  the  Com- 
mission to  levy  assessments  against  employers  who  have 
paid  the  premiums  required  by  the  statute.  The  at- 
torney-general, however,  overlooked  the  power  of  the 
Commission  to  readjust  rates  and  an  examination  of  the 
powers  and  duties  of  the  Commission  in  this  respect 
would  seem  to  indicate  that  employers  who  remain  in  the 
Fund  must  pay  a  rate  of  insurance  sufficient  to  pay  all 
losses.  Under  any  other  construction  of  the  statute  the 
solvency  of  the  Fund  would  depend  entirely  upon  the 
ability  of  the  Commission  to  establish  rates  in  the  first 


STATE  INSURANCE ^ASSESSMENTS  61 

instance  sufficiently  large  to  guard  against  any  financial 
disaster.  Section  95  requires  the  Commission  to  fix  the 
rates  of  premiums  in  such  a  manner  as  to  create  a  solvent 
fund  and  a  sufficient  surplus  and  reserve.  The  estab- 
lished rates  maj'^  be  modified  by  the  Commission  at  the 
end  of  each  policy  period  of  six  months.  As  the  rates 
must  produce  a  premium  income  sufficient  to  keep  the 
fund  solvent,  the  Commission,  in  making  a  readjust- 
ment at  the  end  of  each  six  months,  must  take  into  con- 
sideration the  losses  which  have  accrued  as  well  as  those 
which  are  anticipated.  If  the  surplus  and  reserve  be 
depleted,  the  premiums  must  be  increased  until  the  State 
Fund  is  again  placed  upon  a  proper  financial  basis. 

STATE  NOT  FINANCIALLY  RESPONSIBLE  FOR  OBLIGATIONS  OF 
STATE  INSURANCE. 

The  suggestion  that  the  State  is  under  obligation  to 
make  up  any  deficiency  in  the  Fund  has  neither  legal 
nor  moral  foundation.  Section  90  of  the  Act  provides 
that  the  fund  "shall  be  administered  by  the  Commission 
without  liability  on  the  part  of  the  State  beyond  the 
amoimt  of  such  fund."  Employers  are,  therefore,  warn- 
ed by  the  Act  itself,  that  the  Fund  is  administered  with- 
out liability  on  the  part  of  the  State  and  any  act  of  the 
Legislature  appropriating  funds  for  deficiencies  in  State 
insurance  would  not  only  violate  Section  90  of  the  com- 
pensation law,  but  would  constitute  the  taking  of  prop- 
erty without  due  process  of  law  in  violation  of  the  State 
constitution. 

EMPLOYERS'  LIABILITY  TO  ASSESSMENTS  UNDER  STATE 
INSURANCE  FUND. 

The  opinion  of  the  attorney-general  is  entitled  to 
great  respect  but  upon  an  academic  question  of  this  char- 
acter it  has  no  legal  effect.  At  best  it  would  seem  to 
apply  only  to  employers  who  withdraw  from  the  Fund 
by  giving  notice  within  thirty  days  as  provided  by  Sec- 
tion 100.  Failure  to  give  such  notice  continues  the  pol- 
icy and  the  employer  is  required  to  pay  the  premium 


62  workmen's  compensation 

within  two  weeks  after  notice  of  the  rate  and  amount 
thereof.  It  does  not  appear  equitable  to  permit  the 
Commission  to  assess  upon  the  employers  who  remain 
in  the  Fund  by  adjustment  of  rates,  a  sum  sufficient  to 
make  up  deficiencies ;  and  whether  employers  who  with- 
draw can  be  compelled  to  contribute  to  such  deficiencies 
will  remain  unsettled  until  the  question  is  determined 
by  the  Courts. 

Viewing  the  provisions  from  a  practical  standpoint 
and  having  in  mind  the  purpose  of  assuring  compensa- 
tion to  injured  workmen  and  their  dependents,  the  State 
Insurance  Fund  will  doubtless  be  construed  by  the 
Courts  as  a  State  mutual.  The  employer  obtains  a  re- 
lease from  the  payment  of  individual  claims  for  com- 
pensation but  no  further  release.  Employers  as  a  whole 
must  contribute  premiums  sufficient  to  keep  the  Fund 
solvent  and  carry  out  its  beneficient  purpose. 

§  30.  State  Insurance  Fund — Immunity.  When 
the  workmen's  compensation  law  first  became  effective 
no  claim  was  made  that  an  employer  contributing  premi- 
ums to  the  State  Insurance  Fund  secured  any  release 
from  liability  under  Section  53  of  the  act,  except  the 
release  from  the  payment  of  compensation.  It  was  then 
announced  that  "the  State  Fund  policy  gives  complete 
protection  under  the  workmen's  compensation  act,  and 
the  liability  of  a  successful  suit  at  common  law  by  in- 
jured workmen  is  so  exceedingly  remote  as  to  be  practi- 
cally negligible."  From  time  to  time  various  forms  of 
liability  outside  the  compensation  act  became  apparent 
from  judicial  decisions.  While  the  State  Fund  still  ad- 
mits that  its  policy  only  covers  the  payment  of  compen- 
sation, it  now  contends  that  where  an  employer  insures 
in  the  State  Fund,  the  injured  employee  would  be  de- 
prived of  any  right  of  action  to  recover  damages,  al- 
though such  damages  could  be  recovered  against  a  self- 
insurer  or  against  an  employer  insured  with  a  stock 
company  or  mutual  association.  Referring  to  the  case 
of  Shiiinich  vs.  Clover  Farms  Co.  (Sec.  13  infra),  in 
which  the  Court  held  that  damages  may  be  recovered  for 
disfigurement,  the  State  Fund  has  announced  in  Vol.  3 


STATE  INSURANCE IMMUNITY  63 

of  The  Bulletin,  published  by  the  New  York  State  In- 
dustrial Commission: 

"Had  the  insurance  been  carried  by  the  State 
Fund,  Section  53  would  have  furnished  an  appar- 
ently impregnable  defense  against  the  suit  institut- 
ed by  the  employee.    The  language  of  this  section 
is  broad  and  sweeping,  but  also  definite  and  explicit. 
It  excludes  not  only  injuries  resulting  in  disability 
or  compensatable  injuries,  but  injuries  within  the 
meaning  of  the  definition  given  in  the  act.  *  *  * 
The  fact  that  the  insurance  of  the  employer  in  this 
case  was  carried  in  a  stock  company  deprived  him 
of  the  special  protection  afforded  by  Section  53  of 
the  act." 
The  section  in  question  reads:  (Sec.  53.)      "An  em- 
ployer securing  the  payment  of  compensation  by  con- 
tributing premiums  to  the  State  Fund  shall  thereby  be- 
come relieved  from  all  liability  for  personal  injuries  or 
death  sustained  by  his  employees,  and  the  person  entitled 
to  compensation  under  this  chapter  shall  have  recourse 
therefor  only  to  the  State  Fund  and  not  to  the  employer. 
An  employer  shall  not  otherwise  be  relieved  from  the 
liability  for  compensation  prescribed  by  this  chapter 
except  by  the  payment  thereof  by  himself  or  his  insur- 
ance carrier." 

When  all  of  the  provisions  of  this  section  are  read 
together,  it  is  obvious  that  no  release  is  intended  from 
any  liability  to  pay  damages  outside  of  the  compensa- 
tion act.  The  phrase  "and  the  persons  entitled  to  com- 
pensation under  this  chapter  shall  have  recourse  there- 
for only  to  the  State  Fund"  limits  the  preceding  phrase 
"shall  thereby  become  relieved  from  all  liability  for  per- 
sonal injuries  or  death  sustained  by  his  emploj^ees."  The 
intention  of  the  section  is  also  made  apparent  when  the 
last  sentence  is  considered,  under  which  the  employer 
who  does  not  contribute  premiums  to  the  State  Fund  is 
released,  not  from  all  liability,  but  "from  the  liability  for 
compensation,"  upon  payment  thereof  by  himself  or  his 
insurance  carrier.  The  release  is  from  compensatable 
injuries.     It  is  secured  by  State  Fund  employers  be- 


64  workmen's  compensation 

cause  payment  is  assumed  by  the  Fund  itself  and  it  is 
secured  by  other  employers  when  the  compensation  has 
been  paid  to  the  injured  workman. 

To  support  its  construction  of  Section  53,  the  State 
Fund  relies  upon  a  sentence  taken  from  the  opinion  of 
the  Court  in  Matter  of  Crockett  vs.  State  Insurance 
Fund,  170  App.  Div.  122;  155  N.  Y.  Supp.  692,  which 
reads:  "Section  53  of  the  workmen's  compensation  act 
gives  absolute  immunity  to  an  employer  after  insurance 
in  the  state  fund  while  no  such  immunity  is  given  after 
insurance  with  any  other  carrier."  In  the  Crockett  case, 
however,  the  Court  was  merely  deciding  upon  the  right 
of  an  employer  in  the  State  Fund  to  appeal  from  a  de- 
cision made  by  the  Commission.  The  question  of  im- 
mimity  was  not  before  the  Court  and  the  above  quota- 
tion from  the  opinion  cannot  be  regarded  as  an  author- 
ity upon  the  question.  A  somewhat  similar  statement, 
but  one  which  more  fully  explains  the  purpose  of  Section 
53  is  found  in  Matter  of  Post  vs.  Burger  &  Gohkle,  216 
N.Y.544,viz.: 

"An  employer  securing  payment  of  compensation 
by  contributing  premiimis  to  the  said  fund  is  there- 
by relieved  from  all  liability  for  personal  injuries 
or  death  sustained  by  his  employees  and  a  similar 
relief  from  liability  is  obtained  by  the  employer  by 
payment  of  the  compensation  by  himself  or  an  in- 
surance carrier  (Sec.  53)." 
The  quotation  from  the  decision  in  the  Post  case  in- 
dicates that  all  employers  are  treated  alike  and  disposes 
of  the  claim  that  the  State  Fund  protects  against  suits 
to  which  employers  may  be  otherwise  subject.     The 
State  has  not  established  one  rule  for  employers  in  the 
State  Fund  and  another  rule  for  employers  who  give 
security  for  the  payment  of  compensation  by  one  of  the 
other  methods  provided  by  the  act,  nor  has  the  State 
power  to  make  such  discrimination.    The  liability  men- 
tioned in  Section  53  is  the  liability  to  pay  compensation 
and  the  release  is  a  release  from  that  liability  alone. 
Where  the  compensation  act  applies  the  only  remedy 
is  the  benefits  prescribed,  but  where  the  act  does  not 


ADMINISTRATION  OF  STATE  FUND  65 

apply,  the  liability  of  the  employer,  and  the  right  of  the 
injured  workman  to  recover  damages  for  personal  in- 
juries, remains  the  same  as  before  the  act  was  adopted. 

Since  the  foregoing  was  written,  a  decision  has  been 
rendered  by  Supreme  Court  Justice  William  S.  An- 
drews in  the  case  of  Michael  Connors  vs.  Semet-Solvay 
Co.  (not  yet  reported)  in  which  it  is  expressly  decided 
that  there  is  no  distinction  in  the  release  from  liability 
as  between  employers  who  insure  in  the  State  Fund  and 
employers  who  are  self -insurers  or  insure  with  a  stock 
or  mutual  company.  After  quoting  Section  53,  Judge 
Andrews  states: 

"It  is  not  possible  that  a  distinction,  without  rea- 
son, is  here  sought  to  be  made  between  one  who  in- 
sures in  the  State  Fund  and  others  who  insure  as 
the  statute  equally  permits.     The  purpose  of  in- 
surance is  to  secure  a  fund  which  will  protect  the 
servant.    In  either  case  this  is  equally  accomplished. 
There  is  no  purpose  to  be  served  in  holding  the 
servant  may  not  recover  for  pain  and  suffering,  if 
the  state  is  the  insurer,  yet  may  do  so  if  a  corpora- 
tion is  the  one  liable.     In  fact,  the  Court  of  Ap- 
peals seems  to  have  passed  upon  this  question." 
(Quoting  the  above  extract  from  Matter  of  Post.) 
§  31.     Administration  of  the  State  Insurance  Fund. 
The  entire  expense  of  the  State  Insurance  Fund  is  paid 
by  the  State  until  July  1,  1916.    Subsequent  to  that  time 
the  funds  appropriated  by  the  State  for  carrying  on  the 
fund  will  be  restored  to  the  State  Treasury  out  of  the 
premiums  paid  by  employers.     The  State  Fund  will 
also  at  the  same  time  commence  to  reimburse  the  State, 
together  with  all  other  insurance  carriers,  for  its  propor- 
tionate share  of  the  expense  of  the  Commission  in  con- 
nection with  the  examination,  determination  and  pay- 
ment of  claims.     Employers  in  the  Fund  during  the 
first  two  years  will  have  had  the  benefit  of  a  considerable 
reduction  in  rates  because  the  expenses  have  all  been 
paid  by  the  State.    It  is  expected  there  will  always  be  a 
reduction  from  the  rates  charged  by  the  stock  companies 
because  the  State  Fund  pays  no  commissions  to  agents. 


66  workmen's  compensation 

Theoretically  the  Fund  will  be  administered  after  July 
1,  1916,  in  such  manner  that  the  employers  will  be  called 
upon  to  contribute  only  such  premiums  as  will  pay  com- 
pensation losses  and  administration  expenses.  In  this 
respect  the  Fund  will  be  similar  to  the  compensation 
mutuals.  But  it  is  claimed  by  advocates  of  stock  insur- 
ance that  in  neither  of  these  classes  of  insurance  does  the 
employer  obtain  the  additional  security  afforded  by  the 
large  resources  of  the  stock  companies,  including  their 
capital  and  surplus. 

As  already  seen,  the  decisions  of  the  Commission  are 
final  upon  questions  of  fact.  They  are  also  final  upon 
questions  of  law  as  to  employers  in  the  State  Fund.  This 
was  decided  in  Matter  of  Crockett  vs.  State  Insurance 
Fund,  170  A  pp.  Div.  122;  155  N.  Y.  Supp,  692,  where 
the  Court  held  that  an  employer  carrying  compensation 
insurance  in  the  State  Fund  could  not  appeal  from  a  de- 
cision of  the  Commission.  In  this  case  compensation 
was  awarded  to  Elizabeth  K.  Crockett,  as  widow  of 
Davie  M.  Crockett,  who  died  as  a  result  of  injuries  re- 
ceived while  in  the  employ  of  the  International  Railway 
Company  of  Buffalo,  N.  Y.  The  award  was  opposed  by 
the  employer  because  the  claimant  was  united  in  mar- 
riage to  the  deceased  subsequent  to  the  date  of  the  injury 
which  later  resulted  in  his  death.  It  was  contended  that 
she  was  not  a  dependent  at  the  time  of  the  accident. 
The  Commission  decided  that  this  was  immaterial  in 
view  of  the  fact  that  Section  16  authorizes  an  award  to 
the  "surviving  wife."  When  the  case  came  before  the 
Appellate  Division,  the  appeal  filed  on  behalf  of  the 
International  Railway  Company,  was  dismissed  in  an 
opinion  written  by  Presiding  Justice  Smith.  After  re- 
viewing the  provisions  of  the  act  relating  to  appeals  and 
pointing  out  that  the  Commission  could  not  certify  ques- 
tions of  law  involved  in  decisions  where  the  claim  is  made 
against  the  State  Fund,  the  Court  said : 

"It  is  true  that  the  employer  has  a  remote  in- 
terest, even  though  insured  in  the  State  Fund,  to 
the  end  that  the  risk  which  he  claims  not  to  be  with- 
in the  act  may  be  so  decided  as  affecting  any  subse- 


ADMINISTKATION  OF  STATE  FUND  67 

qiient  premiums  which  he  must  pay.    That  interest, 
however,  is  too  remote  an  interest  to  authorize  his 
appeal  in  a  matter  where  he  is  not  otherwise  ag- 
grieved." 
The  injured  workman  claiming  compensation  against 
the  State  Fund  is  a  party  to  the  proceeding  and  is  given 
the  right  of  appeal  by  Section  23  of  the  act.    Under  the 
amendment  of  1916,  the  Commission  may  now  certify 
questions  of  law  in  State  Insurance  Fund  cases,  but  the 
employer  is  still  denied  the  right  to  appeal. 

The  International  Railway  Company,  in  support  of 
its  right  to  appeal  in  the  Crockett  case  contended  that 
it  was  directly  interested  in  the  award  because  it  had  been 
placed  in  an  individual  group.  Under  this  individual 
grouping  plan  the  company  has  returned  the  excess  of 
its  premium  over  losses  and  reserves,  but  is  liable  for  no 
greater  sum  than  the  premium,  the  losses  in  excess  there- 
of, if  any,  being  made  up  out  of  the  premiums  contrib- 
uted to  the  State  Fund  generally  by  other  employers. 
The  Attorney- General  in  an  opinion  dated  January  28, 
1916,  decided  that  the  individual  grouping  of  employers 
in  the  State  Fund,  except  under  certain  conditions,  was 
illegal. 

The  provisions  of  the  act  relating  to  the  administra- 
tion of  the  State  Fund  confer  very  wide  powers  upon  the 
Commission.  The  employer  is  bound  by  the  decision  of 
the  Commission  both  upon  the  determination  of  rates 
and  upon  the  determination  of  claims.  This  centraliza- 
tion of  power  in  one  body  leads  to  a  situation  under 
which  the  compensation  act  may  be  administered  in  one 
manner  as  to  employers  in  the  State  Fund  and  in  a  dif- 
ferent manner  as  to  those  who  give  security  for  the 
payment  of  compensation  by  some  other  method. 

An  active  competition  for  business  is  conducted  be- 
tween the  State  Insurance  Fund  on  the  one  hand,  and 
the  stock  and  mutual  insurance  companies  on  the  other. 
This  situation  was  probably  never  contemplated  by  the 
framers  of  the  act  who  regarded  the  State  Fund  more 
as  a  check  upon  the  rates  which  might  be  charged  by  in- 
surance companies  and  as  a  safe  method  of  assuring  com- 


68  workmen's  compensation 

pensation  to  the  injured  employee.  When  carried  to  any 
considerable  extent,  this  competition  for  business  may 
lead  to  the  acceptance  of  premiums  upon  employments 
to  which  the  application  of  the  law  is  doubtful,  and  may 
lead  to  a  situation  where  awards  will  be  made  more  to 
protect  the  employer  from  suit  than  in  the  interest  of  the 
injured  workman  and  which  would  be  denied  except  that 
such  course  might  furnish  an  argument  against  State 
insurance. 

The  rule  which  governs  the  application  of  the  com- 
pensation law  to  the  industries  of  the  State,  is  laid  down 
by  the  Supreme  Court  in  flatter  of  Tomassi  vs.  Chris- 
tensen,  decided  January,  1916,  171  App.  Div.  284;  156 
N.  Y.  Supp.  905,  wherein  it  is  held  to  be  the  duty  of  the 
Legislature  and  not  of  the  Commission  or  of  the  Court 
to  determine  what  employments  are  hazardous.  The 
Court  said,  "With  reference  to  the  act,  an  employment 
is  either  hazardous  or  non-hazardous  and  no  employ- 
ment can  be  treated  as  hazardous  unless  the  act,  fairly 
construed,  declares  it  such.  We  cannot  give  to  the  lan- 
guage employed  a  strained  or  unusual  meaning  for  the 
purpose  of  bringing  within  the  act  an  employment  not 
intended  by  the  Legislature  to  be  embraced  within  it." 
The  Court  passed  upon  the  same  question  in  Matter  of 
De  La  Gardelle  vs.  The  Hampton  Co.,  167  App.  Div. 
617;  153  N.  Y.  Supp.  162,  and  held  that  the  category  of 
occupations  within  the  protection  of  the  statute  was  not 
to  be  extended  by  judicial  determination.  It  was  there 
said: 

"Determination  as  to  what  employments  shall 
be  brought  within  the  operation  of  the  workmen's 
compensation  law  involves  questions  of  fact  and 
questions  of  policy  which  the  Legislature  and  Gov- 
ernor must  determine." 
These  decisions  are  binding  upon  the  Commission 
and  no  award  of  compensation  can  be  made  simply  be- 
cause the  employer  has  contributed  premiums  to  the 
State  Fund.    The  Commission  is  governed  by  the  same 
rules  no  matter  what  the  form  of  insurance.    In  Matter 
of  Post  vs.  Burger  &  Gohlke,  168  App.  Div.  403;  153 


ADMINISTRATION  OF  STATE  FUND  69 

N.  Y.  Supp.  505,  the  Court  said  that  the  employer  who 
insured  otherwise  than  in  the  State  Fund  should  have  no 
advantage  or  disadvantage  in  the  construction  of  the 
statute  and  that  "the  law  contemplates  equality  and  that 
all  employees  and  employers  shall  be  measured  by  the 
same  rule  without  regard  to  the  particular  manner  in 
which  the  insurance  is  carried."  In  the  McQueeney  case 
it  was  said  that  "it  is  the  right  of  the  individual  em- 
ployee and  employer  that  they  should  be  treated  the  same 
as  other  employees  and  employers  within  the  act." 


PART  III 

The  Workmen's  Compensation  Law,  Annotated. 
Rules  Adopted  under  the  Compensation  Law. 
Index  of  Hazardous  Employments. 


PART  III 

WORKMEN'S  COMPENSATION  LAW, 

ANNOTATED. 

(Chapter  816  of  the  Laws  of  1913,  as  re-enacted  and 
amended  by  Chapter  41  of  the  Laws  of  1914,  constitut- 
ing Chapter  67  of  the  Consolidated  Laws,  as  amended, 
including  the  amendments  of  1916.) 

ARTICLE  1. 

Short  Title  ;  Application  ;  Definitions. 
Section  1.     Short  title. 

2.  Application. 

3.  Definitions. 

§  1.  Short  title.  This  chapter  shall  be  known  as  the 
"workmen's  compensation  law." 

In  the  case  of  Jensen,  Matter  of  vs.  Southern  Pacific 
Company,  215  N.  Y.  514,  the  Court  of  Appeals  decided 
that  the  compensation  law  did  not  violate  the  14th 
amendment  of  the  Federal  constitution. 

§  2.     Application.  Compensation  provided  for  in  the 

chapter  shall  be  payable  for  injuries  susitained  or  death  in- 
curred by  employees  engaged  in  the  following  hazardous 
employments : 

The  benefits  of  the  compensation  law  are  limited  to 
the  hazardous  employments  enumerated  in  this  section 
and  the  list  of  employments  cannot  be  enlarged  either  by 
the  Commission  or  by  the  Courts. 

De  La  Gardelle,  Matter  of  vs.  Hampton  Company,  167 
App.  Div.  617;  153  N.  Y.  Supp.  162. 

Tomassi,  Matter  of  vs.  Christensen,  171  App.  Div.  284; 
156  N.  Y.  Supp.  905. 

In  determining  what  employments  are  included  with- 
in the  42  groups,  the  rule  ejusdem  generis  will  be  applied 

73 


74  woekmen's  compensation 

and  general  language  will  not  be  extended  beyond  the 
special  language  previously  used. 

Aylesworth,  Matter  of  vs.  Phoenix  Cheese  Co.,  170  App. 
App.  Div.  34;  155  N.  Y.  Supp.  916. 

Wilson,  Matter  of  vs.  Dorflinger  <§•  Sons,  218  N.  Y. 
84,  (Court  of  Appeals,  April  25,  1916.) 

Group  1.  The  operation,  including  construction  and 
repair,  of  railways  operated  by  steam,  electric  or  other 
motive  power,  street  railways,  and  incline  railways,  but 
not  their  construction  when  constructed  by  any  person 
other  than  the  company  which  owns  or  operates  the  rail- 
way, including  work  of  express,  sleeping,  parlor  and  din- 
ing car  employees  on  railway  trains. 
Railroad  employees  engaged  in  intrastate  work  are  in- 
cluded within  Group  1. 

Railroad  employees  engaged  in  interstate  commerce 
are  also  included  in  Group  1  where  the  injury  is  not 
caused  by  the  negligence  of  the  employer. 

Where  the  railroad  employee  is  engaged  in  interstate 
commerce  and  the  injur}'^  is  due  to  negligence  of  the  em- 
ployer, the  Federal  Employers'  Liability  Act  controls. 
Win-field,  Matter  of  vs.  N.  Y.  Central  ^  Hud.  River 
R.  R.,  168  App.  Div.  351 ;  153  N.  Y.  Supp.  499 ;  aff'd.  216 
N.  Y.  284. 

An  employee  of  a  railroad  who  has  finished  operating 
his  car  for  the  day  is  not  engaged  in  the  operation  of  the 
railroad  within  the  meaning  of  Group  1,  while  proceed- 
ing to  have  his  watch  tested. 

De  Voe,  Matter  of  vs.  New  York  State  Railways,  169 
App.  Div.  472 ;  155  N.  Y.  Supp.  12. 

Where  a  railroad  employee  is  engaged  to  watch  ma- 
terial adjoining  the  tracks  and  is  killed  while  standing 
upon  one  of  the  tracks  by  a  passing  train,  his  widow  is 
entitled  to  compensation. 

Claim  No.  31018,  White,  Matter  of  vs.  New  York  Cen- 
tral R.  R.  Co.,  2.  N.  Y.  St.  Dep.  Rep.  477 ;  Aff.  216  N.  Y. 
Memo.  653  (without  opinion). 

(See  also  Section  114  and  cases  cited.) 

Group  2.  Construction,  repair  and  operation  of  rail- 
ways not  included  in  group  one.  (Group  2,  am'd  by  L. 
1916,  Ch.  622,  effective  June  1,  1916.) 


GEOUP  ANNOTATIONS  75 

Group  3.  The  operation,  including  construction  and 
repair,  of  car  shops,  machine  shops,  steam  and  power 
plants,  and  other  works  for  the  purposes  of  any  such  rail- 
way, or  used  or  to  be  used  in  connection  with  it  when  oper- 
ated, constructed  or  repaired  by  the  company  which  owns 
or  operates  the  railway. 

A  repair  shop  for  the  repair  of  engines  and  cars  used 
both  in  interstate  and  intrastate  commerce  is  not  an  in- 
strumentality of  interstate  commerce. 

Shanks  vs.  Delaware,  Lackawanna  <§*  Western  R.  R.  Co., 
214  N.  Y.  413;  aif'd.  36  Sup.  Ct.  Rep.  188  (U.  S.). 

The  above  case  was  followed  by  the  Commission  in  the 
Matter  of  George  Sauter  vs.  New  York  Central  R.  R. 
Co.,  in  which  an  award  of  compensation  was  made  Oc- 
tober 20,  1915,  for  the  loss  of  an  arm  due  to  an  injury 
received  while  repairing  windows  in  a  car  shop. 

Group  4.  The  operation,  including  construction  and  re- 
pair of  car  shops,  machine  shops,  steam  and  power  plants, 
not  included  in  group  three. 

Group  5.  The  operation,  including  construction  and 
repair,  of  telephone  lines  and  wires  for  the  purposes  of 
the  business  of  a  telephone  company,  or  used  or  to  be  used 
in  connection  with  its  business,  when  constructed  or  oper- 
ated by  the  company. 

Group  6.  The  operation,  including  construction  and 
repair,  of  telegraph  lines  and  wires  for  the  purposes  of 
the  business  of  a  telegraph  company,  or  used  or  to  be  used 
in  connection  with  its  business,  when  constructed  or  oper- 
ated by  the  company. 

Group  7.  Construction  or  repair  of  telegraph  and 
telephone  lines  not  included  in  groups  five  and  six.  (Group 
7,  am'd  by  L.  1916,  Ch.  622,  effective  June  1,  1916.) 

Group  8.  The  operation,  within  or  without  the  state, 
including  repair,  of  vessels  other  than  vessels  of  other 
states  or  countries  used  in  interstate  or  foreign  commerce, 
when  operated  or  repaired  by  the  company ;  marine  wreck- 
ing. (Group  8,  am'd  by  L.  1916,  Ch.  622,  effective  June 
1,  1916.) 
Longshore  work  is  not  included  within  the  operation 
of  vessels. 

Jensen,  Matter  of  vs.  Southern  Pacific  Co.,  215  N.  Y. 
514. 


76  workmen's  compensation 

The  captain  of  a  "lighter"  assisting  in  unloading  his 
vessel  in  one  of  the  harbors  of  the  State  of  New  Jersey 
is  engaged  in  the  operation  of  the  vessel  and  is  entitled  to 
compensation  under  Group  8. 

Edwardsen,  Matter  of  vs.  Jarvis  Lighterage  Co.,  168 
App.  Div.  368;  153  N.  Y.  Supp.  391. 

A  resident  of  New  York  State  is  not  entitled  to  com- 
pensation for  injuries  received  while  engaged  in  the 
operation  of  a  vessel  of  another  state. 

File  No.  259,  Coons,  Matter  of  vs.  Kennedy  Tomng  Co., 
State  Industrial  Commission. 

Claim  No.  47205,  Underwood,  Matter  of  vs.  Internation- 
al Elevating  Co.,  Workmen's  Compensation  Commission. 
Claim  No.  28745,  Chas.  Horan,  deceased,  vs.  Tidewater 
Trans.  Co.,  Workmen's  Comp.  Com.,  April  30,  1915. 

An  employee  residing  in  Brooklyn  working  as  an  oiler 
on  a  steamship  owned  by  a  Kentucky  corporation,  is  not 
entitled  to  compensation. 

Sorensen,  Matter  of  vs.  Southern  Pacific  Co.,  Work- 
men's Compensation  Commission. 

Compensation  denied  where  the  employee  was  injured 
while  on  a  fishing  trip  in  which  all  members  of  the  crew 
shared  the  profits  with  the  owner. 

Claim  No.  24213,  James  J.  McGraff,  deceased,  vs.  Rob- 
ert Tapper,  Workmen's  Compensation  Commission. 

Where  a  person  employed  on  a  float  was  drowned  in 
an  unexplained  manner,  the  body  being  found  in  the 
water  three  days  later,  compensation  was  awarded  to  the 
dependents. 

File  No.  575,  August  Tirre,  deceased  vs.  Bush  Terminal 
Co.,  St.  Ind.  Com.  Oct.  27,  1915.  (Award  reversed  on 
question  of  dependency)  App.  Div.  Third  Dept.  May  2, 
1916,  opinion  by  Lyon,  J. 

Where  the  captain  of  a  vessel  received  wages  at  the 
rate  of  $50  per  month  including  the  services  of  his  wife, 
the  wife  was  held  to  be  an  employee  and  compensation 
was  awarded  at  the  rate  of  $3.85  per  week. 

Claim  No.  31770,  Mary  Secor,  Matter  of  vs.  J  as.  A. 
Cullen,  Jr.,  State  Industrial  Commission,  July  26,  1915. 


GKOUP  ANNOTATIONS  77 

Group.  9.  Shipbuilding,  including  construction  and  re- 
pair in  a  ship-yard  or  elsewhere,  not  included  in  group 
eight. 

Group  10.  Longshore  work,  including  the  loading  or 
unloading  of  cargoes  or  parts  of  cargoes  of  grain,  coal, 
ore,  freight,  general  merchandise,  lumber  or  other  prod- 
ucts or  materials,  or  moving  or  handling  the  same  on  any 
dock,  platform  or  place,  or  in  any  warehouse  or  other 
place  of  storage. 

Where  a  longshoreman  is  injured  upon  a  vessel  upon 
the  navigable  waters  of  the  United  States,  including  ves- 
sels tied  to  a  dock,  he  has  the  option  of  claiming  com- 
pensation or  instituting  a  suit  in  Admiralty. 

Walker,  Matter  of  vs.  Clyde  S.  S.  Co.,  215  N.  Y.  529. 

In  the  case  of  Burns,  Matter  of  vs.  Southern  Pacific 
Co.,  215  N.  Y.  Memo  738,  the  injury  was  received  while 
the  claimant  was  working  on  the  dock  and  while  the  point 
was  not  expressly  decided,  the  award  being  affirmed  un- 
der the  authority  of  the  Walker  case,  it  would  seem  to 
follow  from  the  case  of  Atlantic  Transport  Co.,  vs.  Im- 
brovek,  234  U.  S.  52,  that  compensation  is  the  only  rem- 
edy where  the  injury  does  not  happen  on  the  vessel. 

In  Jensen,  Matter  of  vs.  Southern  Pacific  Co.,  215 
N.  Y.  514,  the  injury  occurred  while  the  longshoreman 
was  at  work  on  a  gang  plank  between  the  vessel  and  the 
dock.  The  Court  did  not  decide  whether  an  employee 
injured  under  such  circumstances  had  an  option  of  rem- 
edies. 

An  employee  sorting  refuse  which  has  been  dumped 
from  vessels  is  not  engaged  in  longshore  work. 

Tomassi,  Matter  of  vs.  Christensen,  171  App.  Div.  284 ; 
156  N.  Y.  Supp.  905. 

Employees  engaged  in  ice  harvesting  were  held  by  the 
Commission  to  be  engaged  in  longshore  work,  but  an 
employee  engaged  in  ice  harvesting  was  denied  compen- 
sation by  the  Court  in  the  case  of 

Aylesworth,  Matter  of  vs.  Phoenix  Cheese  Co.,  170  App. 
Div.  34;  155  N.  Y.  Supp.  916. 

For  a  case  in  which  a  longshoreman  in  the  employ  of 


78  workmen's  compensation 

a  firm  of  stevedores  was  loaned  to  another  firm,  both 
firms  being  engaged  in  unloading  the  same  vessel,  in 
which  it  was  held  that  the  longshoreman  was  an  employee 
of  the  latter,  see. 

File  No.  7165,  Sola,  Matter  of  vs.  Martarella  arid  Gian- 
nessi.  The  Bulletin,  Vol.  1,  No.  6,  page  11. 

An  employer  furnishing  a  watchman  for  cargoes  on 
piers  is  engaged  in  longshore  work. 

Axel  Oherg,  Matter  of  vs.  W.  J.  McRoherts  <§•  Co.,  State 
Industrial  Com.,  Dec.  20,  1915.     (On  appeal.) 

A  person  employed  by  a  steamship  company  to  watch 
the  pier  and  boats  while  being  loaded  and  unloaded  is  en- 
gaged in  longshore  work. 

Frank  J.  Rodgers,  Matter  of  vs.  Oceanic  S.  S.  Naviga- 
tion Co.,  State  Industrial  Com.,  Jan.  26,  1916. 

Group  11.     Dredging,  subaqueous  or  caisson  construc- 
tion or  repair,  and  pile  driving.     (Group  11,  am'd  by  L. 
1916,  Ch.  622,  effective  June  1,  1916.) 
An  employee  receiving  an  injury  while  driving  sheet- 
ing is  engaged  in  pile  driving  within  the  meaning  of  this 
group. 

Claim  No.  70995,  Mazzarisi,  Matter  of  vs.  Ward  and 
Tully,  170  App.  Div.  868;  156  N.  Y.  Supp.  964. 

Where  an  employee  residing  on  a  dredge,  received 
permission  to  go  ashore;  fell  from  the  landing  place 
and  was  drowned  while  waiting  for  a  boat  to  take  him 
back  to  the  dredge,  the  widow  was  awarded  compensa- 
tion. 

Claim  No.  12205,  Albert  Berg,  deceased,  vs.  Great 
Lakes  Dredge  <§•  Dock  Co.,  State  Industrial  Commission, 
July  16,  1915.  (Award  reversed,  App.  Div.,  Third  Dept., 
May  2, 1916,  opinion  by  Cochrane,  J.) 

Group  12.  Construction,  installation,  repair  or  oper- 
ation of  electric  light  and  electric  power  lines,  dynamos, 
or  appliances,  and  power  transmission  lines.  (Group  12, 
am'd  by  L.  1916,  Ch.  622,  effective  June  1,  1916.) 

Group  13.  Paving;  road  building,  curb  and  sidewalk 
construction  or  repair;  sewer  and  subway  construction  or 
repair,  work  under  compressed  air,  excavation,  tunneling 
and  shaft  sinking,  well  digging,  laying  and  repair  of  un- 


GEOUP  ANNOTATIONS  79 

derground  pipes,  cables  and  wires,  not  included  in  other 
groups;  street  cleaning,  ashes,  garbage  or  snow  removal; 
operation  of  waterworks.  (Group  13,  am'd  by  L.  1916, 
Ch.  622,  effective  June  1,  1916.) 

Compensation  was  awarded  in  the  following  cases 
where  the  employee  was  engaged  in  subway  construc- 
tion: 

Where  the  employee  was  killed  by  a  train  while  cross- 
ing the  subway  tracks  to  reach  the  street  after  quitting 
work,  although  it  was  unnecessary  to  cross  the  track. 

Di  Paola,  Matter  of  vs.  Crimins  Contracting  Co.,  State 
Industrial  Commission,  Nov.  3,  1916.  (Aff.  App.  Div., 
Third  Department,  May  2,  1916.) 

Where  the  employee  was  injured  while  leaving  the 
subway  after  having  been  discharged  for  the  day. 

Claim  No.  225  n.  c,  Kiernan,  Matter  of  vs.  Freidstadt 
Underpinning  Co.,  157  N.  Y.  Supp.  900; App.  Div. 


•    Where  the  employee  was  killed  by  falling  into  an  open 

sewer  while  attending  a  call  of  nature. 

Claim  No.  5869  n.  c,  Cino,  Matter  of  vs.  Norton  (§•  Gor- 
man Cont.  Co.,  Aff.  156  N.  Y.  Supp.  1117.  (Without 
opinion.) 

Group  14.  Lumbering;  logging,  river-driving,  rafting, 
booming,  saw  mills,  bark  mills ;  shingle  mills,  lath  mills, 
lumber  yards ;  manufacture  of  veneer  and  of  excelsior ; 
manufacture  of  barrels,  kegs,  vats,  tubs,  staves,  spokes  or 
headings.  (Group  14,  am'd  by  L.  1916,  Ch.  622,  effective 
June  1,  1916.) 

Group   15.     Pulp  and  paper  mills. 

Group  16.  Manufacture  of  furniture,  interior  wood- 
work, organs,  pianos,  piano  actions,  canoes,  small  boats, 
coffins,^  wicker  and  rattan  ware;  upholstering;  manufac- 
ture of  mattresses  or  bed  springs. 

Group  17.  Planing  mills,  sash  and  door  factories, 
manufacture  of  wooden  and  corrugated  paper  boxes, 
cheese  boxes,  mouldings,  window  and  door  screens,  win- 
dow shades,  carpet  sweepers,  wooden  toys,  wooden  articles 
and  wares  or  baskets;  cork  cutting.  (Group  17,  am'd 
by  L.  1916,  Ch.  622,  effective  June  1,  1916.) 

Group  18.     Mining;   reduction   of  ores  and  smelting; 


80  woekmbn's  compensation 

preparation  of  metals  or  minerals;  oil  and  gas  wells. 
(Group  18,  am'd  by  L.  1916,  Ch.  622,  effective  June  1, 
1916.) 

Group  19.  Quarries;  sand,  shale,  clay  or  gravel  pits, 
lime  kilns ;  manufacture  of  brick,  tile,  terra-cotta,  asbestos, 
fire-proofing,  or  paving  blocks,  manufacture  of  calcium 
carbide,  cement,  asphalt  or  paving  material;  stone  crush- 
ing or  grinding.  (Group  19,  am'd  by  L.  1916,  Ch.  622, 
effective  June  1,  1916.) 

Group  20.  Manufacture  of  glass,  glass  products, 
glassware,  porcelain  or  pottery. 

A  firm  engaged  in  cutting  up  and  beveling  glass  for 
the  purpose  of  making  looking  glasses  is  engaged  in  the 
manufacture  of  glass  products  within  the  meaning  of 
this  group,  and  compensation  was  awarded  where  the 
employee  was  injured  while  lifting  glass  from  a  table. 
McQueeney,  Matter  of  vs.  Sutphen  <§•  Meyer,  167  App. 
Div.  528;  153  N.  Y.  Supp.  554. 

Group  21.  Iron,  steel  or  metal  foundries;  rolling  mills; 
manufacture  of  castings,  forgings,  heavy  engines,  loco- 
motives, machinery,  safes,  anchors,  cables,  rails,  shaft- 
ing, wires,  tubing,  pipes,  sheet  metals,  boilers,  furnaces, 
stoves,  structural  steel,  iron  or  metal ;  machine  shops  in- 
cluding repairs.  (Group  21,  am'd  by  L.  1916,  Ch.  622, 
effective  June  1,  1916.) 

A  salesman  injured  while  installing  machinery  is  en- 
titled to  compensation. 

File  No.  1383,  Benton,  Matter  of  -vs.  Fraser,  Aff.  156 
N.  Y.  Supp.  1115.     (Without  opinion.) 

Group  22.  Operation  and  repair  of  stationary  engines 
and  boilers,  freight  and  passenger  elevators,  not  included 
in  other  groups ;  window  cleaning ;  heating  and  lighting. 
(Group  22,  am'd  by  L.  1916,  Ch.  622,  effective  June  1, 
1916.) 

The  Commission  has  ruled  that  janitors  and  other 
employees  who  are  required  to  operate  stationary  en- 
gines or  boilers  are  entitled  to  compensation  for  an 
injury  received  in  connection  with  this  work.  In  Claim 
No.  5539,  Pranio,  Matter  of  vs.  Peloso,  155  N.  Y.  Supp. 
1135  (no  opinion),  the  Appellate  Division  affirmed  an 


GEOUP  ANNOTATIONS  8l 

award  where  the  janitor  was  injured  while  chopping 
wood  for  use  in  the  boiler. 

Group  23.  Manufacture  of  small  castings  or  forcings, 
metal  wares,  instruments,  utensils  and  articles,  hardware, 
nails,  wire  goods,  screws,  bolts,  metal  beds,  sanitary,  water, 
gas  or  electric  fixtures,  light  machines,  typewriters,  cash 
registers,  adding  machines,  carriage  mountings,  bicycles, 
metal  toys,  tools,  cutlery,  instruments,  photographic  cam- 
eras and  supplies,  sheet  metal  products,  buttons;  jewelry; 
gold,  silver  and  plated  ware;  articles  of  bone,  ivory  and 
shell.  (Group  23,  am'd  by  L.  1916,  Ch.  622,  effective 
June  1,  1916.) 

Horse-shoeing  was  placed  in  this  group  by  the  Com- 
mission, but  the  Appellate  Division  held  in  the  case  of 
Grady,  Matter  of  vs.  Holliday,  155  N.  Y.  Supp.  1110, 
that  the  business  of  horseshoeing  was  not  included  and 
an  award  of  compensation  made  by  the  Commission  was 
set  aside.  See  Group  24  as  amended,  which  now  in- 
cludes horseshoers. 

Group  24.  Manufacture  of  agricultural  implements, 
threshing  machines,  traction  engines,  wagons,  carriages, 
sleighs,  vehicles,  automobiles,  motor  trucks,  toy  wagons, 
sleighs  or  baby  carriages ;  blacksmiths ;  horse-shoers. 
(Group  24,  am'd  by  L.  1916,  Ch.  622,  effective  June  1, 
1916.) 

Group  25.  Manufacture  of  explosives  and  dangerous 
chemicals,  corrosive  acids^  or  salts,  ammonia,  gasoline, 
petroleum,  petroleum  products,  celluloid,  gas,  charcoal,  ar- 
tificial ice,  gun  powder  or  ammunition ;  ice  harvesting,  ice 
storage  and  ice  distribution.  (Group  25,  am'd  by  L.  1916, 
Ch.  622,  effective  June  1,  1916.) 

Group  26.  Manufacture  of  paint,  color,  varnish,  oil, 
japans,  turpentine,  printing  and  other  ink,  printers'  roll- 
ers, tar,  tarred,  pitched  or  asphalted  paper.  (Group  26, 
am'd  by  L.  1916,  Ch.  622,  effective  June  1,  1916.) 

Group  27.  Distilleries,  breweries;  manufacture  of 
spirituous  or  malt  liquors,  alcohol,  wine,  mineral  water  or 
soda  waters;  bottling.  (Group  27,  am'd  by  L.  1916,  Ch. 
622,  effective  June  1,  1916.) 

An  employee  working  for  a  firm  engaged  in  the  manu- 
facture of  soda,  ice  cream  and  candy,  to  be  sold  on  the 


82  workmen's  compensation 

premises,  was  awarded  compensation  for  an  injury  re- 
ceived while  cleaning  glasses. 

Paulsen,  Matter  of  vs.  ScJivlmhohn,  5  N.  Y.  St.  Dep. 
Rep.  112. 

Group  28.  Manufacture  of  drugs  and  chemicals,  not 
specified  in  group  twenty-five,  medicines,  dyes,  extracts, 
pharmaceutical  or  toilet  preparations,  soaps,  candles,  per- 
fumes, non-corrosive  acids  or  chemical  preparations,  fer- 
tilizers, including  garbage  or  sewerage  disposal  plants ; 
shoe  blacking  or  polish.  (Group  28,  am'd  by  L.  1916,  Ch. 
622,  effective  June  1,  1916.) 

A  wholesale  druggist  is  engaged  in  the  manufacture 
of  drugs  and  chemicals  within  the  meaning  of  this  group 
and  compensation  was  awarded  to  the  dependents  of  one 
employed  as  a  handy  man,  who  was  injured  l)y  falling 
down  an  elevator  shaft  while  putting  up  a  shelf. 

Larsen,  Matter  of  vs.  Paine  Drug  Company,  169  App. 

Div.  838;  155  N.  Y.  Supp.  759.     Aff N.  Y.  

(Court  of  Appeals,  May  12, 1916,  opinion  by  Hiscock,  J.) 

A  salesman  injured  by  falling  on  the  stairs  while  going 
from  the  factory  room  to  the  office  room  on  separate 
floors  in  a  loft  building  is  entitled  to  compensation. 

File  No.  419,  Nicholson,  Matter  of  vs.  Klipstein  ^  Co. 
Aff.  155  N.  Y.  Supp.  1127.     (Without  opinion.) 

This  group  does  not  cover  a  person  injured  while  sort- 
ing refuse  at  a  city  dump. 

Tomassi,  Matter  of  vs.  Christensen,  Jr.,  171  App.  Div. 
284;156N.Y.  Supp.  905. 

Group  29.  Milling;  manufacture  of  cereals  or  cattle 
foods,  warehousing;  storage  of  all  kinds  and  storage  for 
hire;  operation  of  grain  elevators.  (Group  29,  am'd  by 
L.  1916,  Ch.  622,  effective  June  1, 1916.) 

Storage  means  a  place  of  storage  where  the  goods  of 
others  are  kept  for  hire  and  does  not  include  a  store  house 
in  connection  with  a  wholesale  establishment  in  which  a 
wholesaler  keeps  his  own  surplus  goods. 

Mihn,  Matter  of  vs.  Hussey,  169  App.  Div.  742;  165 
N.  Y.  Supp.  860. 


QKOUP  ANNOTATIONS  83 

An  employee  engaged  in  buying  and  selling  fruit  for  a 
firm  engaged  in  the  storage  business  is  not  entitled  to 
compensation  under  this  group. 

Sickles,  Matter  of  vs.  Ballston  Refrigerator  Co.,  171 
App.  Div.  123 ;  156  N.  Y.  Supp.  864. 

Where  the  employer  was  engaged  in  the  storage,  re- 
pair and  sale  of  furniture,  and  the  employee  was  injured 
while  taking  down  a  rug  rack  to  make  room  for  the  stor- 
age of  goods,  compensation  was  awarded. 

Claim  No.  45,  George  Burton,  Matter  of  vs.  James  A. 
Whalen  <§•  Sons,  Aff.  156  N.  Y.  Supp.  1117.  (Without 
opinion.) 

This  group  was  amended  in  1916  to  include  storage  of 
all  kinds  as  well  as  storage  for  hire  and  the  decision  in 
Mihn  vs.  Ilussey,  has  no  application  since  the  amend- 
ment became  effective. 

Group  30.  Packing  houses,  meat  markets,  abattoirs, 
manufacture  or  preparation  of  meats  or  meat  products 
or  glue,  gelatine,  paste  or  wax.  (Group  30,  am'd  by  L. 
1916,  Ch.  622,  effective  June  1,  1916.) 

Groups  30  and  33  do  not  cover  the  preparation  of 
meat  or  foodstuffs  for  cooking  purposes  for  domestic 
service  or  in  hotels  or  restaurants,  and  a  butcher  or  chef 
in  a  hotel  is  not  covered. 

De  La  Gardelle,  Matter  of  vs.  Hampton  Co.,  167  App. 
Div.  617;  153  N.  Y.  Supp.  162. 

An  employee  in  a  retail  meat  market  injured  while 
preparing  meat  in  an  electric  meat  chopper  is  within  this 
group. 

Koliler,  Matter  of  vs.  Frohmann,  167  App.  Div.  533; 
153  N.  Y.  Supp.  559. 
An  employer  conducting  a  retail  meat  market  is  not 
engaged  in  the  preparation  of  meat  or  meat  products 
within  the  meaning  of  this  group,  and  compensation  was 
denied  where  a  clerk  and  delivery  man  in  a  meat  market 
received  a  fatal  injury  while  delivering  meat  on  foot. 

Newman,  Matter  of  vs.  Newman,  169  App.  Div.  745; 
155  N.  Y.  Supp.  665. 
Meat    markets    are    expressly    included   under    the 


84  workmen's  compensation 

amendment  of  this  group  as  made  by  the  Legislature  in 
1916. 

Group  31.    Tanneries. 

Group  32.  Furriers ;  manufacture  of  leather  goods  and 
products,  belting,  saddlery,  harness,  trunks,  valises,  boots, 
shoes,  gloves,  umbrellas,  rubber  goods,  rubber  shoes,  tub- 
ing, tires  or  hose.  (Group  32,  am'd  by  L.  1916,  Ch.  622, 
effective  June  1,  1916.) 

Group  33.    Canning  or  preparation  of  fruit,  vegetables, 
fish  or  food  stuflFs ;  pickle  factories  and  sugar  refineries ; 
manufacture  of  dairy  products.     (Group  33,  am'd  by  L. 
1916,  Ch.  622,  effective  June  1,  1916.) 
A  person  employed  to  harvest  ice  for  a  company  en- 
gaged in  the  manufacture  of  cheese  is  not  employed  in 
the  preparation  of  food  stuffs. 

Aylesworth,  Matter  of  vs.  Phoenix  Cheese  Co.,  170  App. 
Div.  34;  155  N.  Y.  Supp.  916. 
Ice  harvesting,  storage  and  distribution  are  now  in- 
cluded in  Group  25. 

(See  also  De  La  Gardclle  vs.  The  Hampton  Co.,  167 
App.  Div.  617;  153  N.  Y.  Supp.  162.) 

Group  34.  Bakeries,  including  manufacture  of  crack- 
ers and  biscuits,  manufacture  of  confectionery,  spices  or 
condiments. 

Group  35.  Manufacture  of  tobacco,  cigars,  cigarettes 
or  tobacco  products. 

Group  36.  Manufacture  of  cordage,  ropes,  fibre,  brooms 
or  brushes ;  manilla  or  hemp  products. 

Group  37.  Flax  mills ;  manufacture  of  textiles  or  fabric, 
spinning,  weaving  and  knitting  manufactories;  manufac- 
ture of  yam,  thread,  hosiery,  cloth,  blankets,  carpets,  can- 
vas, bags,  shoddy  or  felt. 

Group  38.    Manufacture  of  men's  or  women's  clothing, 
white  wear,   shirts,   collars,   corsets,  hats,   caps,   furs   or 
robes,  or  other  articles  from  textile  or  fabrics.     (Group 
38,  am'd  by  L.  1916,  Ch.  622,  effective  June  1,  1916.) 
A  model  employed  by  a  firm  engaged  in  the  manufac- 
ture of  clothing  is  entitled  to  compensation  under  this 
group. 

Claim  No.  74369,  Bloomfield,  Matter  of  vs.  November, 
Aff .  1 56  N.  Y.  Supp.  1 1 1 6.    (  Without  opinion. ) 

A  salesman  employed  by  a  firm  in  the  manufacture  of 


GROUP  ANNOTATIONS  86 

clothing  may  receive  compensation  for  an  injury  re- 
ceived on  the  employer's  premises  in  the  course  of  his 
employment. 

File  No.  761.  Berlinger,  Matter  of  vs,  Ritchie  <§•  Cor- 
nell,  Aff.  156  N.  Y.  Supp.  1115.    (Without  opinion.) 

A  salesman  employed  by  a  firm  engaged  in  the  manu- 
facture of  women's  clothing  is  not  entitled  to  compen- 
sation for  an  injury  received  while  passing  through  the 
factory  caused  by  slipping  on  the  floor. 

Lyon,  Matter  of  vs.  Windsor  (§•  Davis,  App.  Div.,  Third 
Dept.,  May  Term  1916,  opinion  by  Woodward,  J. ;  Kel- 
logg, P.  J.,  dissenting. 

The  manufacture  of  men's  or  women's  clothing  in- 
cludes the  manufacture  of  boys'  or  girls'  clothing.  ( Gen- 
eral Construction  Law,  Sec.  29,  Sec.  55.) 

A  tailor  working  by  the  piece  at  his  own  residence  is 
an  employee  engaged  in  the  manufacture  of  clothing. 

Claim  No.  23927,  Fiocca,  Matter  of  vs.  Dillon,  State 
Industrial  Commission,  Feb.  10,  1916.  The  Bulletin,  Vol. 
1,  No.  6,  page  13. 

Group  39.  Power  laundries ;  dyeing,  cleaning  or  bleach- 
ing- 

Group  40.  Printing,  engraving,  photo-engraving,  stere- 
otyping, electrotyping,  lithographing,  embossing;  manu- 
facture of  moving  picture  machines  and  films ;  manufac- 
ture of  stationery,  paper,  cardboard  boxes,  bags,  or  wall- 
paper; and  bookbinding.  (Group  40,  am'd  by  L.  1916, 
Ch.  622,  effective  June  1,  1916.) 

Group  41.     The  operation,  otherwise  than  on  tracks, 
on  streets,  highways,  or  elsewhere  of  cars,  trucks,  wagons 
or  other  vehicles,  and  rollers  and  engines,  propelled  by 
steam,  gas,  gasoline,  electric,  mechanical  or  other  power 
or  drawn  by  horses  or  mules ;  public  garages,  livery,  board- 
ing or  sales  stables ;  movers  of  all  kinds.     (Group  41,  am'd 
by  L.  1916,  Ch.  622,  effective  June  1,  1916.) 
A  stableman  employed  by  an  express  company  is  en- 
gaged in  the  operation  of  a  vehicle  within  the  meaning 
of  Group  41. 

Costello,  Matter  of  vs.  (Taylor)  American  Express  Co., 
217  N.  Y.  179. 


86  woekmen's  compensation 

A  driver  of  a  truck  is  engaged  in  the  operation  of  a 
vehicle  while  caring  for  his  team  of  horses  in  the  stable  at 
the  end  of  the  day's  work. 

Smith,  Matter  of  vs.  Price,  168  App.  Div.  421;  153 
N.  Y.  Supp.  221. 

A  driver  was  awarded  compensation  for  the  loss  of  an 
eye  due  to  an  accident  while  disinfecting  stables. 

Walker,  Matter  of  vs.  M.  Mossom  Company,  3  N.  Y.  St. 
Dep.  Rep.  362. 

"The  loading  and  unloading  of  the  wagon,  the  neces- 
sary care  and  attention  to  the  wagon  and  to  the  horses ; 
any  act  which  falls  within  his  dutj'^  as  a  teamster  is  within 
the  protection  of  the  law." 

Dale,  Matter  of  vs.  Saunder  Brothers, App.  Div. 

;  157  N.  Y.  Supp.  1062;  Aff.  218  N.  Y.  59. 

A  helper  on  a  truck  is  engaged  in  the  operation  of  a 
vehicle. 

Hendricks,  Matter  of  vs.  Seaman  Brothers,  170  App. 
Div.  133;  155  N.  Y.  Supp.  638. 

A  porter  receiving  an  injury  while  operating  a  hand 
truck  was  held  to  be  engaged  in  the  operation  of  a  ve- 
hicle. 

Claim  No.  24089,  Vincent  Farrar,  Matter  of  vs.  Gristede 

Bros.,   Inc.,   State  Industrial  Commission,   January    19, 

1916. 

A  delivery  man  making  deliveries  from  a  store  on 

foot  after  putting  up  his  horse  and  wagon  for  the  day 

is  not  subject  to  the  compensation  law. 

Newman,  Matter  of  vs.  Newman,  169  App.  Div.  745; 
155  N.  Y.  Supp.  665. 

Compensation  was  denied  where  a  clerk  in  a  meat 
market  was  injured  while  going  from  the  market  to  a 
wagon  to  assist  in  unloading  meat. 

File  No.  2913,  Matter  of  Henry  F.  Bivggel,  State  In- 
dustrial Commission,  January  13,  1916. 

An  elevator  is  not  a  vehicle  within  the  meaning  of 
Group  41. 

Wilson,  Matter  of  vs.  C.  Dorflinger  (§•  Sons,  218  N.  Y. 
84  (Court  of  Appeals,  Apr.  25,  1916),  reversing  170 
App.  Div.  119;  155  N.  Y.  Supp.  875. 


GEOUP  ANNOTATIONS  87 

(Both  freight  and  passenger  elevators  were  included 
in  Group  22  by  the  amendments  of  1916.) 

The  dependents  of  a  superintendent  of  a  building  re- 
quired to  operate  an  elevator  were  awarded  compensa- 
tion where  the  employee  was  found  dead  at  the  bottom 
of  the  elevator  shaft. 

Sterling,  INIatter  of  vs.  Western  Union  Telegraph  Co., 
The  Bulletin,  Vol.  1,  No.  3,  page  10. 

Where  a  watchman  who  was  required  to  operate  an 
elevator  was  found  dead  at  the  bottom  of  the  elevator 
shaft,  it  was  decided  that  the  injury  was  due  to  the  oper- 
ation of  an  elevator  and  that  compensation  should  be 
paid  under  Group  41. 

Claim  No.  350,  William  Fogarty,  deceased,  vs.  National 
Biscuit  Co.,  St.  Ind.  Com.,  Feb.  3,  1916,  The  Bulletin,  Vol. 
1,  No.  6,  p.  9. 

Compensation  awarded  where  the  employee  was  in- 
jured while  using  a  freight  elevator. 

Claim  No.  70685,  Martucci,  Matter  of  vs.  Hills  Broth- 
ers Co.,  171  App.  Div.  370;  156  N.  Y.  Supp.  833. 

Compensation  awarded  under  Group  41  where  the 
employee  was  a  porter  and  elevator  man  and  was  injured 
by  falling  on  the  stairs  immediately  after  quitting  work 
and  leaving  the  elevator. 

Claim  No.  57177,  Foley,  Matter  of  vs.  Bretton  Hall 
Company,  Aff.  156  N.  Y.  Supp.  1122.    (W^ithout  opinion.) 

Compensation  was  denied  to  dependents  of  an  em- 
ployee working  as  a  night  watchman  who  also  operated 
an  elevator  and  who  was  found  dead  near  the  doorway 
of  the  premises.  The  business  of  the  employer  was  not 
classified  as  hazardous  and  there  was  no  proof  connecting 
the  employee's  death  with  the  operation  of  the  elevator. 
Michael  Fitzgibhons,  deceased,  vs.  Clarence  S.  Wood- 
ward, State  Industrial  Commission,  November  24,  1915. 

(The  decisions  in  Matter  of  Sterling,  Fogarty,  Fitz- 
gibhons, Martucci  and  Foley,  all  elevator  cases,  were 
made  before  the  decision  of  the  Court  of  Appeals  in 
Matter  of  Wilson.  They  may  be  regarded  as  authori- 
ties, however,  for  accidents  subsequent  to  June  1,  1916, 


88  woekmen's  compensation 

from  and  after  which  elevators  are  included  in  Group 
22.) 

Group  42.     Stone  cutting  or  dressing;  marble  works; 
manufacture  of  artificial  stone;  steel  building  and  bridge 
construction  or  repair;  installation  or  repair  of  elevators, 
fire  escapes,  boilers,  engines  or  heavy  machinery;  brick- 
laying,   tile-laying,    mason    work,   stone-setting,    concrete 
work,  plastering;  and  manufacture   of  concrete  blocks; 
structural  carpentry;  painting,  papering,  picture  hang- 
ing, glazing,  decorating  or  renovating;  sheet  metal  work; 
roofing;    construction,    repair    and   demolition    of   build- 
ings or  contents ;  bridges  and  other  structures ;  salvage  of 
buildings  or  contents ;  plumbing,  sanitary  lighting  or  heat- 
ing installation   or  repair;  installation  and   covering  of 
pipes  or  boilers;  junk  dealers.      (Group  42,  am'd  by  L. 
1916,  Ch.  622,  effective  June  1,  1916.) 
A  janitor  who  also  repairs  the  building  is  not  entitled 
to  compensation  under  this  group  unless  injured  while 
engaged  in  repair  work,  and  compensation  was  denied 
where  the  injury  happened  while  the  janitor  was  putting 
a  flag  on  a  flagpole. 

Gleisner,  Matter  of  vs.  Gross  <§*  Herbener,  170  App.  Div. 
37 ;  155  N.  Y.  Supp.  946. 

A  carpenter  employed  casually  to  repair  buildings  is 
not  covered  by  this  group. 

Bargey,  Matter  of  "vs.  Massaro  Macaroni  Co.,  170  App. 
Div.  103;  155  N.  Y.  Supp.  1076. 

An  employee  receiving  an  injury  while  working  upon 
a  stone  crusher  for  a  general  contractor  is  entitled  to 
compensation. 

Claim  No.  26818,  Dolici,  Matter  of  vs.  Chas.  A. 
Meyer  Cont.  Co.,  Aff.  156  N.  Y.  Supp.  1120.  (Without 
opinion. ) 

Group  43.  Any  employment  enumerated  in  the  fore- 
going groups  and  carried  on  by  the  state  or  a  municipal 
corporation  or  other  subdivision  thereof,  notwithstanding 
the  definition  of  the  term  "employment"  in  subdivision  five 
of  section  three  of  this  chapter.  (Group  43  added  by  L. 
1916,  Ch.  622,  effective  June  1,  1916.) 
The  State  and  municipal  corporations  were  included 
within  the  term  "employer"  by  Chapter  316,  Laws  of 


ELECTIVE  PROVISIONS  89 

1914,  which  amended  Subdivision  3  of  Section  3.  The 
Attorney- General,  in  an  opinion  dated  June  9,  1914, 
held  that  employees  of  the  State  and  of  a  municipal 
corporation  were  not  subject  to  the  law  except  where 
such  employees  were  engaged  in  hazardous  employments 
carried  on  for  pecuniary  gain.  Subsequently,  the  At- 
torney-General advised  the  Commission  by  letter,  in  ef- 
fect, that  neither  the  State  nor  a  municipal  corporation 
could  carry  on  an  employment  for  pecuniary  gain.  The 
effect  of  these  rulings  of  the  Attorney- General  was  to 
exclude  all  employees  of  the  State  and  municipal  cor- 
porations from  the  benefits  of  the  compensation  law. 
Group  43  expressly  includes  employees  of  the  State  or  of 
municipal  corporations  engaged  in  any  employment  cov- 
ered by  the  preceding  42  groups,  without  regard  to  the 
question  of  pecuniary  gain. 

The  State  or  a  municipal  corporation  having  employ- 
ees subject  to  the  Compensation  Law  is  bound  by  all 
provisions  of  the  act.  Security  for  the  payment  of  com- 
pensation must  be  provided  through  one  of  the  methods 
mentioned  in  Section  50,  otherwise,  in  case  of  a  suit  for 
negligence,  the  State  or  the  municipal  corporation  will 
be  deprived  of  the  defenses  of  contributory  negligence, 
assumed  risk  and  negligence  of  fellow  employees. 

SECTION  2,  CONTINUED.    ELECTIVE  PROVISIONS. 

Any  employer  not  carrying  on  one  of  the  employments 
enumerated  in  this  section,  or  who  carrying  on  one  of  such 
employments  has  in  his  employ  an  employee  not  included 
within  the  term  "emploj'^ee"  as  defined  by  section  three  of 
this  chapter,  and  the  employees  of  any  such  employer  may, 
by  their  joint  election,  elect  to  become  subject  to  the  pro- 
visions of  this  chapter  in  the  manner  hereinafter  provided. 
Such  election  on  the  part  of  the  employer  shall  be  made 
by  posting  notices  thereof  about  the  place  where  the  work- 
men are  employed,  in  a  manner  to  be  prescribed  by  rules 
to  be  adopted  by  the  commission,  and  by  filing  with  the 
commission  a  written  statement,  in  a  form  to  be  prescribed 
by  the  commission,  to  the  effect  that  he  accepts  the  pro- 
visions of  this  chapter  and  that  he  adopts  subject  to  the 


90  workmen's  compensation 

approval  of  the  commission  one  of  the  methods  of  securing 
compensation  to  his  employees  prescribed  in  section  fifty 
of  this  chapter  which,  when  so  filed  with  and  approved  by 
the  commission  as  to  form  and  method  of  securing  com- 
pensation shall  operate  to  subject  him  to  the  provisions 
of  this  chapter  and  of  all  acts  amendatory  thereof  for  the 
period  of  one  year  from  the  date  of  such  approval,  and 
thereafter  without  further  act  on  his  part  for  successive 
terms  of  one  year  each,  unless  such  employer  shall,  at  least 
sixty  days  prior  to  the  expiration  of  such  first  or  any 
succeeding  year,  file  with  the  commission  a  notice  in  writing 
that  he  withdraws  his  election. 

Any  employee  in  the  service  of  any  such  employer  shall 
be  deemed  to  have  accepted,  and  shall  be  subject  to  the 
provisions  of  this  chapter  and  any  act  amendatory  thereof, 
if,  at  the  time  of  the  accident  for  which  liability  is  claimed, 
the  employer  charged  with  such  liability  has  not  with- 
drawn his  election  and  the  employee  shall  not  at  the  time 
of  entering  into  his  contract  of  hire  have  given  to  his  em- 
ployer notice  in  writing  that  he  elects  not  to  be  subject  to 
the  provisions  of  this  chapter  and  filed  a  copy  thereof  with 
the  commission,  or  in  the  event  that  such  contract  for  hire 
was  made  in  advance  of  the  election  of  the  employer,  such 
employee  shall  not  have  given  to  his  employer  and  filed 
with  the  commission  within  twenty  days  after  such  election 
notice  in  writing  that  he  elects  not  to  be  subject  to  such 
provisions. 

A  minor  employee  shall  be  deemed  sui  juris  for  the  pur- 
pose of  making  such  an  election. 

The  rights  and  remedies,  benefits  and  liabilities  of  an 
employer  or  employee  so  electing  to  become  subject  to  the 
provisions  of  this  chapter  shall  thereupon  become  the  same 
as  they  would  have  been  had  they  been  engaged  in  one  of 
the  occupations  or  employments  enumerated  herein  and 
the  words  employer  or  employee  wherever  they  appear  in 
this  chapter  shall  be  construed  as  including  an  employer 
or  employee  who  has  so  elected  to  become  subject  to  its 
provisions.     (The  above  portion  of  Section  2  relating  to 
employers  and  employees  who  may  become  subject  to  the 
compensation  law,  by  their  joint  election,  added  by  L. 
1916,  Ch.  622,  effective  June  1,  1916.) 
The  above  elective  provision  should  be  read  in  connec- 
tion with  Article  14  of  the  Labor  Law,  printed  in  full 
in  the  Appendix.    Any  provision  of  such  article  of  the 


DEFINITIONS  ANNOTATED  91 

Labor  Law  inconsistent  with  the  foregoing  is  repealed 
by  L.  1916,  Ch.  622,  Section  15,  effective  June  1,  1916. 

§  3.     Definition.     As  used  in  this  chapter,  1.    "Hazard- 
ous employment"  means  a  work  or  occupation  described  in 
section  two  of  this  chapter. 
The  benefits  of  the  compensation  law  are  limited  to  the 
hazardous  employments  enumerated  in  Section  2. 

De  La  Gardelle,  Matter  of  vs.  The  Hampton  Co.,  167 
App.  Div.  617;  153  N.  Y.  Supp.  162. 

Tomassi,  Matter  of  vs.  Christensen,  171  App.  Div.  284 ; 
156  N.  Y.  Supp.  905. 

Undertaking  and  embalming  is  not  included  as  a  haz- 
ardous employment. 

Claim  No.  57508,  Foley,  Matter  of  vs.  Peter  F.  Doran, 
Workmen's  Comp.  Com.,  March  29,  1915. 

While  an  undertaker  is  not  engaged  in  a  hazardous 
employment,  an  employee  working  as  a  helper  and  driv- 
er of  a  vehicle  is  entitled  to  compensation  under  Group 
41. 

Claim  No.  56433,  John  T.  Hillary,  Matter  of  vs.  Kauf- 
man Brothers,  State  Industrial  Commission,  Jan.  3,  1916. 

A  wholesale  dealer  is  not  engaged  in  a  hazardous  em- 
ployment and  compensation  was  denied  to  the  widow  of 
a  salesman  and  buyer,  who  was  drowned  by  the  sinking 
of  the  Lusitania. 

File  No.  449,  Charles  V.  Mills,  Matter  of  vs.  L.  B. 
Locke  <S"  Potts,  State  Industrial  Commission,  July  12, 
1915. 

The  operation  of  theatres  is  not  classified  as  hazardous 
and  compensation  was  denied  to  the  widow  of  a  property 
man  killed  by  falling  through  a  trap  door. 

Claim  No.  52437,  Samuel  Adler,  deceased.  Matter  of 
vs.  ThomashefsJcy  Theatre  Co.,  Workmen's  Comp.  Com. 

Compensation  was  also  denied  where  a  property  man 
was  injured  by  falling  over  some  steps. 

Claim  No.  50284,  Chas.  O'Neill,  Matter  of  vs.  Booth 
Theatre,  State  Industrial  Commission,  Nov.  29,  1915. 

The  manager  or  superintendent  of  a  hotel  injured 


92  workmen's  compensation 

while  repairing  the  premises  is  not  engaged  in  a  hazard- 
ous employment. 

J.  Irving  Godder,  Matter  of  vs.  Hartt,  et  al.,  State  In- 
dustrial Commission,  Feb.  9,  1916. 

While  the  operation  of  a  garage  was  not  a  hazardous 
employment  prior  to  the  amendments  of  1916,  which  in- 
cluded the  operation  of  a  garage  in  Group  41,  an  officer 
of  a  company  conducting  such  business,  injured  while 
driving  an  automobile  was  held  entitled  to  compensation 
as  engaged  in  the  operation  of  a  vehicle. 

Claim  No.  37170,  Albert  Keffer,  Matter  of  vs.  Yonkers 
Auto  Repair  Co.,  State  Industrial  Commission. 

In  the  case  of  Aylesworth,  Matter  of  vs.  Phoenix 
Cheese  Co.,  170  App.  Div.  34;  155  N.  Y.  Supp.  916,  the 
Appellate  Division  held  that  ice  harvesting  was  not  a 
hazardous  employment.  Ice  harvesting  is  now  included 
in  Group  25  under  the  amendments  of  1916,  eifective 
June  1, 1916. 

The  operation  of  lumber  yards  was  not  expressly  in- 
cluded as  a  hazardous  employment  until  the  amendments 
of  1916,  which  added  this  employment  to  Group  14,  and 
in  Claim  No.  3181,  Samuel  Lepidus,  Matter  of  vs.  Em- 
pire City  Lumber  Co.,  decided  January  26,  1916,  com- 
pensation was  denied  where  an  employee  was  injured 
while  unloading  and  piling  lumber  in  a  lumber  yard. 

2.  "Commission"  means  the  state  industrial  commis- 
sion, as  constituted  by  this  chapter.  (Subd.  2  am'd  by  L. 
1916,  Ch.  622.) 

3.  "Employer,"  except  when  otherwise  expressly  stat- 
ed, means  a  person,  partnership,  association,  corporation, 
and  the  legal  representatives  of  a  deceased  employer,  or 
the  receiver  or  trustee  of  a  person,  partnership,  associa- 
tion or  corporation,  employing  workmen  in  hazardous  em- 
ployments including  the  state  and  a  municipal  corporation 
or  other  political  subdivision  thereof.  (Subd.  3  am'd  by  L. 
1914,  Ch.  316.) 

An  employer  conducting  a  non-hazardous  employ- 
ment is  not  liable  for  compensation  except  where  the 
injury  is  occasioned  while  the  employee  is  engaged  in 
work  expressly  declared  hazardous  by  the  Act. 


DEFINITIONS  ANNOTATED  98 

Gleisner,  Matter  of  vs.  Gross  <§•  Herhener,  170  App. 
Div.  37;  155  N.  Y.  Supp.  946. 

Newman,  Matter  of  vs.  Newman,  169  App.  Div.  745 ; 
155  N.  Y.  Supp.  665. 

Where  the  employer  is  carrying  on  one  employment 
which  is  hazardous  and  another  employment  which  is  not 
within  the  Act,  no  compensation  is  payable  for  an  injury 
received  in  the  latter  employment. 

Sickles,  Matter  of  vs.  Ballston  Refrig.  Storage  Co.,  171 
App.  Div.  123;  156  N.  Y.  Supp.  864. 

Aylesworth,  Matter  of  vs.  PJioenix  Cheese  Co.,  170  App. 
Div.  34;  155  N.  Y.  Supp.  916. 

An  employer  repairing  his  building  is  not  engaged  in 
the  business  of  repair  of  buildings  or  structural  car- 
pentry. 

Bargey,  Matter  of  vs.  Massaro  Macaroni  Co.,  170  App. 
Div.  103;  155  N.  Y.  Supp.  1076. 

Where  a  person  hires  a  wagon,  team  and  driver  and 
has  control  and  direction  over  the  work,  the  driver  is  an 
employee  of  such  person,  although  employed  and  paid 
by  the  owner  of  the  team  and  wagon. 

Claim  No.  25199,  Gimber,  Matter  of  vs.  T.  P.  Kane  Co., 
2  N.  Y.  St.  Dep.  Rep.  475;  Aff.  155  N.  Y.  Supp.  1109. 
(Without  opinion.) 

Claim  No.  54558,  Nolan,  Matter  of  vs.  Cranford  Com- 
pany, 4  N.  Y.  St.  Dep.  Rep.  337 ;  Aff.  155  N.  Y.  Supp. 
1128.     (Without  opinion.) 

Where  the  owner  of  the  team  retains  control  over  the 
driver,  the  owner  is  held  to  be  the  employer  although 
the  driver  is  performing  work  for  another. 

It  seems  that  both  the  owner  of  the  team  and  the  per- 
son for  whom  the  team  is  working  may  be  regarded  as 
employers  and  both  may  be  liable  for  compensation. 

Dole,  Matter  of  vs.  Saunder  Brothers,  157  N.  Y.  Supp. 

1062; App.  Div. ,  Third  Dept.,  March  8,  1916; 

Aff.  218  N.  Y.  59  (Court  of  Appeals,  April  25,  1916.) 

Where  the  claimant  was  one  of  two  brothers  who 
called  themselves  co-partners  and  it  appeared  that  the 
claimant  received  a  share  of  the  profits  but  worked  on  a 
salary  and  was  not  liable  for  debts  it  was  held  that  the 


94  workmen's  compensation 

claimant  was  an  employee  instead  of  a  co-partner,  and 
entitled  to  compensation. 

Claim  No.  63985,  Walter  E.  MyerJiof,  Matter  of  vs. 

MyerJwf  Brothers,  State  Industrial  Commission,  Oct.  20, 

1915. 

In  Claim  No.  8567,  Sol  Turoff,  Matter  of  vs.  Archer 
Detective  Agency  and  The  United  Fruit  Co.,  where  the 
detective  agency  furnished  employees  to  the  latter  to 
perform  longshore  work,  receiving  a  commission  on  the 
wages  which  were  paid  to  the  employees  by  the  detective 
agency,  such  employees  were  held  to  be  in  the  employ 
of  the  United  Fruit  Co.,  which  had  control  over  the 
work. 

Where  a  firm  of  coal  dealers  employed  a  truckman  at 

the  request  of  a  customer  to  deliver  a  load  of  coal,  the 

truckman  was  held  to  be  an  employee  of  the  coal  dealers. 

Claim    No.    52857.      Christopher   Beck,    deceased,    vs. 

Nichols  Sf  Webster,  State  Industrial  Commission,  Nov.  15, 

1915. 

Where  there  is  a  dispute  as  to  the  employer,  the  ques- 
tion involved  is  a  question  of  fact  upon  which  the  de- 
cision of  the  Commission  is  final. 

Dale,  Matter  of  vs.  Saunder  Brothers,  218  N.  Y.  59, 
(Court  of  Appeals,  Apr.  25,  1916.) 

4.     "Employee"  means  a  person  engaged  in  one  of  the 
occupations  enumerated  in  section  two  or  who  is  in  the 
service  of  an  employer  whose  principal  business  is  that  of 
carrying  on  or  conducting  a  hazardous  employment  upon 
the  premises  or  at  the  plant,  or  in  the  course  of  his  em- 
ployment away  from  the  plant  of  his  employer;  and  shall 
not  include  farm  laborers  or  domestic  servants.     (Subd.  4, 
am'd  by  L.  1916,  Ch.  622,  effective  June  1,  1916.) 
An  employee  receiving  an  injury  in  the  course  of  his 
employment,  where  both  the  employee  and  the  employer 
are  residents  of  New  York  State  and  the  contract  of  em- 
ployment was  made  in  this  State,  is  entitled  to  compen- 
sation where  the  injury  was  received  in  another  State. 

Valentine,  Matter  of  vs.  Smith  Angevine  Co.,  2  N.  Y. 
St.  Dep.  Rep.  460 ;  Aff.  216  N.  Y.  544. 

Post,  Matter  of  vs.  Burger  <§•  Gohlke,  153  N.  Y.  Supp. 
505 ;  168  App.  Div.  403 ;  Aff.  216  N.  Y.  644. 


DEFINITIONS  ANNOTATED  95 

Dependents  of  an  employee,  a  resident  of  New  Jersey, 
employed  in  this  State  to  perform  work  in  West  Vir- 
ginia, are  not  entitled  to  compensation  where  the  em- 
ployee's death  was  due  to  injuries  received  while  at  work 
in  West  Virginia. 

File  No.  291,  Lloyd  vs.  Power  Specialty  Company,  State 
Industrial  Com.,  The  Bulletin,  Vol.  1,  No.  6,  page  9. 

A  resident  of  this  State  employed  by  another  resident 
of  the  State  to  perform  work  entirely  in  another  state  is 
not  entitled  to  compensation  under  the  Compensation 
Law  of  New  York. 

Gardner,  Matter  of  vs.  Horsehead^s  Construction  Co., 
171  App.  Div.  66 ;  156  N,  Y.  Supp.  899. 

Claim  No.  39670,  Fritz,  Matter  of  vs.  Baumont,  Award 
set  aside,  154  N.  Y.  Supp.  1140.     (Without  opinion.) 

• 

A  person  who  signed  a  false  statement  in  writing  to 
obtain  employment  (in  violation  of  the  Penal  Law),  is 
an  employee  entitled  to  compensation. 

Kenny,  Matter  of  vs.  Union  Railway  Company,  166 
App.  Div.  497;  152  N.  Y.  Supp.  117. 

A  painter  having  a  written  contract  to  paint  a  sign 
guaranteeing  the  work  which  was  performed  entirely  by 
himself  is  not  an  independent  contractor,  but  is  an  em- 
ployee, within  the  meaning  of  the  compensation  law. 

Rheinwald,  Matter  of  vs.  Builders  Brick  6^  Supply  Co., 
168  App.  Div.  425;  153  N.  Y.  Supp.  598;  reversing  1 
N.  Y.  St.  Dep.  Rep.  417. 

The  owner  of  a  dredge  leasing  same  to  a  third  party 
but  having  control  over  its  operation  is  an  independent 
contractor. 

Powley,  Matter  of  vs.  Vivian  <§•  Co.,  169  App.  Div.  170 ; 
154  N.  Y.  Supp.  426. 

Such  independent  contractor  is  an  employee  of  the 
lessee  while  transporting  supplies  to  the  dredge  for  the 
lessee. 

Powley,  Matter  oi  vs.  Vivian  <§*  Company  (above). 

An  employee  of  a  person  who  is  not  engaged  in  a 
hazardous  employment  is  not  within  the  compensation 


96  workmen's  compensation 

act  unless  performing  work,  at  the  time  of  the  accident, 
which  is  expressly  defined  as  hazardous. 

Gleisner,  Matter  of  vs.  Gross  Sj-  Herhener,  170  App. 
Div.  37;  155  N.  Y.  Supp.  946. 

Nezvman,  Matter  of  vs.  Newman,  169  App,  Div.  745 ; 
155  N.  Y.  Supp.  665. 

A  person  employed  casually  to  repair  the  building 
where  a  hazardous  employment  is  carried  on  is  not  an 
employee  engaged  in  such  hazardous  emploj'^ment. 

Bargey,  Matter  of  vs.  Massaro  Macaroni  Co.,  170  App. 
Div.  103;  155  N.  Y.  Supp.  1076. 

A  police  officer  employed  jointly  by  a  town  and  by  a 
company  engaged  in  mining  is  an  employee  of  the  com- 
pany while  performing  work  as  an  officer  in.  connection 
with  the  business  of  the  company. 

James,  Matter  of  vs.  Witherbee  Sherman  Co.,  2  N.  Y. 
St.  Dep.  Rep.  483. 

An  officer  of  a  corporation  is  an  employee  entitled  to 
compensation  while  working  as  a  foreman  or  mechanic. 
Cantor,   Matter  of  vs.  Rubin  Musicant   Company,   3 
N.  Y.  St.  Dep.  Rep.  392. 

The  captain  of  a  lighter  which  had  been  leased  to  and 
was  transporting  goods  for  another  was  held  to  be  an 
emploj^ee  of  the  owner  of  the  vessel. 

Claim  No.  23863,  Norman,  Matter  of  vs.  Empire  Light- 
erage Co.,  2  N.  Y.  St.  Dep.  Rep.  480. 

A  person  employed  as  a  mechanic  who  also  owned  a 
motor  boat  which  he  at  times  leased  to  and  operated  for 
his  employer  was  held  to  be  an  employee  and  not  an  in- 
dependent contractor  while  engaged  in  the  operation  of 
the  boat. 

Claim  No.  54026,  Julius  Olsen,  deceased,  Matter  of  vs. 
State  Insurance  Fund,  Workmen's  Comp.  Com.,  April  27, 
1915. 

A  person  repairing  farm  buildings  is  not  an  employee 
under  the  Compensation  Act. 

Claim  No.  14407,  Fred  McComsy,  Matter  of  vs.  George 
E.  Simmons,  The  Bulletin,  Vol.  1,  No.  6,  p.  13. 


DEFINITIONS  ANNOTATED  97 

A  person  employed  casually  by  a  truckman  to  assist 
in  unloading  a  vehicle  was  held  to  be  an  employee  of  the 
firm  by  which  the  truckman  was  regularly  employed. 

Claim  No.  38318,  Tlws.  Williams,  Matter  of  vs.  Mes- 
serau  Metal  Bed  Co.,  Workmen's  Comp.  Com.,  May  12, 
1915. 

In  a  case  where  an  employee  was  injured  while  oper- 
ating a  traction  engine  for  a  firm  engaged  in  the  thresh- 
ing business,  it  was  held  that  the  claimant  was  not  em- 
ployed as  a  farm  laborer  and  was  entitled  to  compensa- 
tion under  Group  41. 

File  No.  17810,  Fred  H.  Green,  Matter  of  vs.  Miller  Sf 
Miller,  State  Industrial  Commission,  Jan.  31,  1916. 

Where  a  company  has  work  performed  at  its  plant 
by  the  piece  under  an  oral  contract  and  furnishes  the 
material,  machinery,  etc.,  persons  hired  by  the  contractor 
to  assist  in  the  work  are  employees  of  the  company. 

File  No.  21001,  Ferdinando  Carita,  Matter  of  vs.  Star 
Box  4'  Lumber  Co.,  State  Industrial  Commission,  Dec.  20, 
1915. 

A  resident  of  New  Jersey  employed  by  a  company  in 
Pennsylvania  to  perform  work  in  the  State  of  New 
York  is  entitled  to  compensation  under  the  New  York 
act  for  an  injury  received  in  this  state. 

Joseph  Griffiths,  Matter  of  vs.  American  Bitumastic 
Enamel  Co.,  State  Industrial  Commission,  April  4,  1916. 

(See  also  Part  I,  Sections  6,  7,  8,  10,  11,  12,  15,  16, 
and  19.) 

5.     "Employment"  includes  employment  only  in  a  trade, 
business   or  occupation   carried  on  by   the  employer   for 
pecuniary  gain,  except  where  the  employer  and  his  em- 
ployees have  by  their  joint  election  elected  to  become  sub- 
ject to  the  provisions  of  this  chapter  as  provided  in  sec- 
tion two.     (Subd.  5,  am'd  by  L.  1916,  Ch.  622,  effective 
June  1,  1916.) 
An  employer  keeping  a  store  house  in  connection  with 
the  sale  of  merchandise  by  wholesale  is  not  engaged  in 
the  storage  business  for  pecuniary  gain. 

Mihn,  Matter  of  vs.  Hussey,  169  App.  Div.  742;  155 
N.  Y.  Supp.  860. 


98  woekmen's  compensation 

A  hosi)ital  which  distributes  no  profits  although  a  fee 
is  charged  for  the  care  and  treatment  of  patients  is  not 
carried  on  for  pecuniary  gain. 

Gamha,  Matter  of  vs.  N.  Y,  Post-Graduate  School  <§- 
Hospital  Workmen's  Comp.  Com.,  March  29,  1915. 

The  industrial  department  of  the  Salvation  Army, 
the  profits  of  which  are  used  for  charitable  and  religious 
purposes,  is  not  carried  on  for  pecuniary  gain  and  an 
employee  of  the  Salvation  Army  is  not  entitled  to  com- 
pensation. 

Scott,  Matter  of  vs.  Salvation  Army,  Workmen's  Comp. 
Com.,  April  30,  1915. 

A  municipal  corporation  is  not  engaged  in  a  trade, 
business  or  occupation  for  profit,  although  a  revenue 
may  be  obtained  from  the  operation  of  one  of  its  depart- 
ments. 

Claim  No.  33531,  Miallo,  Matter  of  vs.  City  of  Water- 
town,  Board  of  Waterworks,  Workmen's  Compensation 
Com.,  March  29, 1915. 

Claim  No.  25985,  Daniel  J.  Wigmore,  deceased,  vs.  City 
of  New  York,  Dept.  of  Docks  <§-  Ferries,  Workmen's  Com- 
pensation Com.,  Feb.  8,  1915. 

An  employee  injured  while  working  for  the  State  of 
New  York  engaged  in  the  repair  of  a  lock  on  the  Erie 
Canal  is  not  entitled  to  compensation. 

Jennings,  Matter  of  vs.  State  of  New  York,  State  In- 
dustrial Commission,  Sept.  20,  1915. 
(In  connection  with  employees  of  the  State  and  muni- 
cipal corporations  see  Group  43,  added  by  L.  1916,  Ch. 
622,  effective  June  1,  1916.) 

A  painter  injured  while  painting  the  roof  of  a  farm 
building  is  not  employed  in  an  occupation  carried  on  by 
the  employer  for  pecimiary  gain. 

Claim  No.  14407,  Fred  McComsy,  Matter  of  vs.  George 
E.  Simmons,  The  Bulletin,  Vol.  1,  No.  6,  page  13. 

A  claim  of  an  employee  of  a  boat  club  injured  while 
operating  a  motor  boat  was  denied  upon  the  ground  that 
the  business  was  not  conducted  for  pecuniary  gain. 

Claim  No.  11325,  Percy  R.  Downe,  Matter  of  vs.  Motor 


ACCIDENTAL   INJURIES  99 

Boat  Club  of  Buffalo,  State  Industrial  Commission,  Dec. 
29,  1915. 

6.  "Compensation"  means  the  money  allowance  paya- 
ble to  an  employee  or  to  his  dependents  as  provided  for  in 
this  chapter,  and  includes  funeral  benefits  provided  there- 
in. 

7.  "Injury"  and  "personal  injury"  mean  only  acci- 
dental injuries  arising  out  of  and  in  the  course  of  em- 
ployment and  such  disease  or  infection  as  may  naturally 
and  unavoidably  result  therefrom. 

ACCIDENTAL   INJURIES. 

The  following  injuries  were  held  to  be  accidental  in- 
juries: 

Where  a  railroad  employee  was  poisoned  with  poison 
ivy. 

Plass,  Matter  of  vs.  New  England  Railway  Co.,  169 
App.  Div.  826 ;  155  N.  Y.  Supp.  854. 

Where  the  employee  became  insane  as  a  result  of  the 
mental  shock  of  an  accident. 

McMalion,  Matter  of  vs.  Interborough  Rapid  Transit 
Co.,  5  N.  Y.  St.  Dep.  Rep.  109. 

Hernia  caused  by  a  strain  from  lifting  a  piano. 

Mooney,  Matter  of  vs.  Weber  Piano  Company,  AS.  156 
N.  Y.  Supp.  1135.     (Without  opinion.) 

Hernia  caused  by  fall  from  a  wagon. 

Ulrich,  Matter  of  vs.  Lenox  Coat,  Apron  ^  Supply  Co., 
Aff.  155  N.  Y.  Supp.  1145.     (Without  opinion.) 

Anthrax  contracted  through  an  abrasion  of  the  skin 
while  handling  wool. 

Claim  No.  65555,  Henry,  Matter  of  vs.  G.  Levor  <§•  Co., 
State  Industrial  Commission. 

Freezing  where  the  employee  was  subjected  to  more 
than  the  ordinary  hazard  of  cold  weather. 

Aylesworth,  Matter  of  vs.  Phoenix  Cheese  Co.,  170  App. 
Div.  34;  155  N.  Y.  Supp.  916. 

Cole,  Matter  of  vs.  Calahan  ^  Sperry,  4  N.  Y.  St.  Dep. 
Rep.  348. 

Linck,  Matter  of  vs.  Millard,  4  N.  Y.  St.  Dep.  Rep.  385. 


100  workmen's  compensation 

Where  the  injured  workman  was  disabled  by  an  elec- 
tric shock  from  a  stroke  of  lightning  while  handling  iron 
cans  during  a  thunder  storm. 

Claim  No.  26553,  Floyd  Bates,  Matter  of  vs.  Alonzo 
Miles,  Workmen's  Comp.  Com.,  February  8,  1915. 

Where  a  puddler  in  an  iron  factory  fell  and  was  in- 
jured as  a  result  of  a  fainting  spell  brought  on  by  over- 
heating. 

File  No.  14876,  Patrick  Fennelly,  Matter  of  vs.  Burden 
Iron  Co.,  Workmen's  Compensation  Commission. 

Where  an  employee  working  for  a  firm  engaged  in  the 

manufacture  of  chemicals  was  disabled  from  poisonous 

fumes  which  were  caused  by  overheating  the  chemicals. 

Claim  No.  24411,  Martliias  Kratz,  Matter  of  vs.  Sup. 

Chemical  Co.,  State  Industrial  Com.,  March  6,  1916. 

Injuries  resulting  from  assaults  by  fellow  employees. 

Yume,  Matter  of  vs.  Knickerbocker  Portland  Cement 
Co.,  3  N.  Y.  St.  Dep.  Rep.  353;  Aff.  without  opinion  153 
N.  Y.  Supp.  1151 ;  appeal  dismissed  216  N.  Y.  Memo.  653. 

Harnett,  Matter  of  vs.  Tkos.  J.  Steen  Bldg.  Construc- 
tion Co.,  2  N.  Y.  St.  Dep.  Rep.  492,  Aff.  without  opinion 
153  N.  Y.  Supp.  1119;  appeal  dismissed  216  N.  Y.  101. 

Heitz,  Matter  of  vs.  Ruppert,  (155  N.  Y.  Supp.  1112), 
Aff. N.  Y. ,  May  2,  1916. 

INJURIES  NOT  ACCIDENTAL. 

In  the  following  cases  compensation  was  denied  be- 
cause the  injury  resulting  in  disability  was  not  due  to  an 
accident. 

Where  the  claimant  was  disabled  by  loss  of  vision  due 
to  a  very  strong  light  under  which  he  was  required  to 
work. 

Claim  No.  55428,  John  H.  Surf  ass  vs.  American  La 
France  Fire  Engine  Co.,   State   Industrial   Commission. 

Where  a  printer  was  disabled  from  blood  poisoning 
alleged  to  have  been  caused  by  dust  and  dirt  from  a 
falling  ceiling,  there  being  no  evidence  to  show  that  there 
was  any  abrasion  of  the  skin. 

Claim  No,  71773,  George  Watters  vs.  Francis  E.  Fitch 
Co.,  State  Industrial  Commission,  Sept.  27,  1915. 


ARISING   OUT   OF   THE    EMPLOYMENT  101 

Where  the  injury  was  due  to  lead  poisoning. 

Claim  No.  54764,  ITce  RacJiUn,  Matter  of  vs.  Danziger 
Paint  Co.,  State  Industrial  Commission,  June  30,  1915. 

Where  the  injury  consisted  of  a  cramped  hand  due  to 
the  continual  use  of  a  heavy  axe. 

Claim  No.  67003,  William  H.  Smart  vs.  Cruss  Kemper 
Co.,  State  Industrial  Com. 

Where  the  constant  twisting  of  the  arm  while  han- 
dling cans  for  the  purpose  of  inspection  resulted  in  an 
injury  to  the  elbow  joint  causing  disability  to  work. 

Claim  No.  13733,  William  H.  J.  Tract/  vs.  De  Laval 
Separator  Co.,  State  Industrial  Commission,  Jan.  18, 
1916. 

Where  the  employee  received  a  cut  from  a  razor  while 
being  shaved,  which  subsequently  became  infected  with 
anthrax  in  the  course  of  his  employment,  causing  death. 
File  No.  15061,  William  I.  Eldridge,  deceased.  Matter 
of  vs.  Endicott  Johnson  (§•  Co.,  State  Industrial  Commis- 
sion, April  12,  1916. 

ARISING  OUT  OF  AND  IN  THE  COURSE  OF  THE  EMPLOYMENT. 

In  the  following  cases  it  was  held  that  the  injuries 
arose  out  of  and  in  the  course  of  the  employment : 

A  foreman  assaulted  by  two  fellow  employees  to 
whom  he  was  giving  instructions. 

Claim  No.  15210,  Yume,  Matter  of  vs.  Knickerbocker 
Portland  Cement  Co.,  3  N.  Y.  St.  Dep.  Rep.  353;  Aff. 
without  opinion  153  N.  Y.  Supp.  1151;  appeal  dismissed 
216  N.  Y.  Memo.  653. 

An  employee  assaulted  by  fellow  employees  who  had 
previously  been  discharged,  between  which  bad  feeling 
existed. 

Claim  No.  180,  Harnett,  Matter  of  vs.  Thos.  J.  Steen 
.  Bldg.  Const.  Co.,  2  N.  Y.  St.,  Dep.  Rep.  492 ;  Aff.  without 
opinion   153   N.   Y.    Supp.    1119;   appeal   dismissed   216 
N.  Y.  101. 

A  driver  who  lost  an  eye  through  a  scuffle  with  a  fel- 
low employee  after  a  dispute  concerning  the  care  of 
horses. 


102  workmen's  compensation 

Claim  No.  8749,  Heitz,  Matter  of  vs.  Ruppert,  Aff.  155 

N.  Y.  Supp.  1112  (Without  opinion),  Aff.  N.  Y. 

,  May  2,  1916. 

Railroad  employee  injured  by  movement  of  car  un- 
der which  he  was  seeking  shelter  from  rain. 

Moore,  Matter  of  vs.  Lehigh  Valley  R.  R.  Co.,  154 
N.  Y.  Supp.  620;  2  N.  Y.  St.  Dep.  Rep.  472;  169  App. 
Div.  177. 

Employee  injured  while  cleaning  his  own  motorcycle 
prior  to  starting  work,  the  motorcycle  being  used  in  go- 
ing to  and  from  work  and  in  connection  with  the  busi- 
ness. 

Kingsley,  Matter  of  vs.  Donovan,  169  App.  Div.  828; 
155  N.  Y.  Supp.  801. 

Plelper  on  truck  who  fell  from  wagon  in  attempting 
to  drive  boys  away  from  the  wagon. 

Hendricks,  Matter  of  vs.  Seaman  Brothers,  155  N.  Y. 
Supp.  638;  170  App.  Div.  133. 

A  seaman  who  was  drowned  by  falling  into  the  water 
after  boarding  an  adjoining  boat. 

Claim  No.  29452,  Lazerick,  Matter  of  vs.  N.  Y.,  N.  H. 
iSf  H.  R.  R.  Co.,  Aff.  155  N.  Y.  Supp.  1119.  (Without 
opinion.) 

Employee  of  a  street  railroad  company  who  reported 
for  work  early  by  mistake  and  was  injured  while  board- 
ing a  car  to  report  for  work  at  another  place  at  a  later 
time.  , 

Claim  No.  33284,  Morrisey,  Matter  of  vs.  New  York 
Railways  Co.,  Aff.  154  N.  Y.  Supp.  1134.  (Without 
opinion.) 

A  sales  manager  injured  by  falling  on  the  stairs  while 
proceeding  from  the  shop  to  the  office. 

File  No.  419,  Nicholson,  Matter  of  vs.  A.  Klipstein  (S* 
Co.,  Aff.  155  N.  Y.  Supp.  1127.     (Without  opinion.) 

An  employee  who  took  poison  by  mistake  after  being 
told  by  his  foreman  to  obtain  some  salts,  both  drugs  be- 
ing kept  on  the  premises. 

Claim  No.  12421,  O'Neil,  Matter  of  vs.  Carley  Heater 
Co.,  Aff.  App.  Div.,  Third  Dept.,  March  8,  1916.  (With- 
out opinion.) 


ARISING    OUT    OF    THE    EMPLOYMENT  103 

An  employee  in  a  subway  injured  by  falling  into  an 
open  sewer,  while  attending  to  a  call  of  nature. 

Cino,  Matter  of  vs.  Norton  Gorman  Contracting  Co., 
Aff.  156  N.  Y.  Supp.  1117.     (Without  opinion.) 

An  employee  injured  while  assisting  the  employee  of 
another  contractor  upon  the  same  building. 

Claim  No.  27411,  Harrison,  Matter  of  vs.  Kane,  Aff. 
153  N.  Y.  Supp.  1119.     (Without  opinion.) 

An  employee  injured  while  leaving  the  subway  after 
having  been  discharged  for  the  day. 

Claim  No.  225  (n.  c),  Kiernan,  Matter  of  vs.  Freistadt 
Underpinning  Co.,  App.  Div.,  Third  Dept.,  March  8, 
1916,  157  N.  Y.  Supp.  900. 

An  employee  who  was  killed  while  assisting  an  em- 
ployee of  another  contractor  on  the  same  premises  who 
was  caught  in  a  trench  after  a  cave-in. 

Waters,  Matter  of  vs.  W.  J.  Taylor  Co.,  154  N.  Y. 

Supp.  1149;  Aff.  N.  Y.  '  (Court  of  Appeals, 

May  12,  1916,  opinion  by  Hiscock,  J.). 

A  railroad  employee  injured  while  crossing  the  tracks 
on  way  to  dinner. 

Carini,  Matter  of  vs.  Nickel  Plate  R.  R.  Co.,  4  N.  Y. 
St.  Dep.  Rep.  423. 

A  railroad  employee  struck  by  train  while  getting  a 
drink  of  water. 

Solle,  Matter  of  vs.  N.  Y.,  N.  H.  Sf  H.  R.  R.  Co.,  4 
N.  Y.  St.  Dep.  Rep.  492. 
A  railroad  employee  who  was  injured  through  burns 
from  waste  which  he  was  using  and  which  became  ig- 
nited. 

Siepienska,  Matter  of  vs.  New  York  Central  R.  R.  Co., 
4  N.  Y.  St.  Dep.  Rep.  395. 

A  watchman  who  was  injured  by  falling  from  a  build- 
ing under  construction. 

Sorge,  Matter  of  vs.  Alderbrau  Company,  3  N.  Y.  St. 
Dep.  Rep.  390. 
Where  the  death  of  an  employee  was  due  to  a  fall 
caused  by  a  slippery  floor. 

Claim  No.  4475,  Winters,  Matter  of  vs.  New  York  Her- 
ald Co.,  Aff.  155  N.  Y.  Supp.  1149.     (Without  opinion.) 


104  workmen's  compensation 

An  employee  injured  by  stumbling  over  a  lumber  pile 
on  leaving  the  premises  by  a  short  cut  immediately  after 
leaving  work. 

Bennett,  Matter  of  vs.  A.  U.  Kressell,  St.  Industrial 
Com.,  Jan.  5,  1916. 

Injuries  received  by  a  claim  agent  while  riding  upon  a 
car  due  to  someone  stepping  on  his  foot  resulting  in 
gangrene,  causing  death. 

File  No.  359,  Brown,  Matter  of  vs.  Richmond  L.  <§•  R.  R. 
Co.,  State  Industrial  Com.,  Feb.  3,  1916,  The  Bulletin, 
Vol.  1,  No.  6,  page  12. 

Where  a  non-Union  man  was  assaulted  by  Union  men 
who  had  lost  their  jobs  and  were  on  a  strike. 

Claim  No.  40846,  Clay,  Matter  of  vs.  The  J  as.  Thomp- 
son Steel  Const.  Co.,  Workmen's  Comp.  Com.-,  Feb.  24, 
1915. 

Where  a  driver  while  passing  from  his  vehicle  to  the 
sidewalk  to  deliver  a  package  was  struck  by  an  automo- 
bile. 

Charles  R.  Miller,  deceased,  vs.  American  Express  Co., 
State  Industrial  Commission,  Jan.  26,  1916. 

Where  a  foreman  working  for  a  firm  engaged  in  the 
operation  of  vehicles  and  of  a  boarding  stable,  who  re- 
sided on  the  premises,  was  killed  by  falling  on  the  stairs 
while  going  from  his  living  rooms  to  the  employer's 
office  on  the  floor  below. 

File  No.  70582,  Hugh  Leslie,  deceased,  vs.  O'Connor  8f 
Richman,  State  Industrial  Commission,  July  28,  1915; 
Aff.  App.  Div.,  Third  Dept.,  May  2,  1916. 

Where  employees  were  permitted  to  eat  lunch  on  the 
premises  and  to  draw  hot  water  from  a  heater  during 
which  the  claimant  was  injured. 

Claim  No.  9023,  Tillie  O'Connor,  Matter  of  vs.  Harper 
Brothers,  State  Industrial  Com.,  Dec.  22,  1915. 

Where  the  employee  was  permitted  to  eat  lunch  on 
the  premises  and  was  injured  during  the  noon  hour 
while  attempting  to  prevent  a  door  from  closing. 

File  No.  6543,  Louis  Stein,  Matter  of  vs.  John  Weg- 
man.  State  Industrial  Com. 


ARISING    OUT    OF    THE    EMPLOYMENT  105 

INJURIES  NOT  ARISING  OUT  OF  AND  IN  THE  COURSE  OF  THE 

EMPLOYMENT. 

In  the  following  cases  it  was  held  that  the  injuries 
did  not  arise  out  of  and  in  the  course  of  the  employment : 
An  employee  of  a  street  railroad  company  who  was 
struck  by  a  car  immediately  after  leaving  his  employ- 
ment and  while  on  his  way  to  have  his  watch  tested. 

De  Voe,  Matter  of  vs.  New  York  State  Railways,  169 
App.  Div.  472;  155  N.  Y.  Supp.  12. 

Girl  in  toilet  injured  by  another  girl  forcing  a  pair  of 
scissors  through  a  crack. 

De  Phillippis,  Matter  of  vs.  FaulJcenburg,   170  App. 

Div.  153;  155  N.  Y.  Supp.  761. 

(Note:     In  the  above  case  the  Court  held  that  the 

injuries  were  accidental  and  happened  in  the  course  of 

the  employment,  but  set  aside  the  award  because  the 

injuries  did  not  arise  out  of  the  employment.) 

An  employee  who  was  struck  by  a  train  after  having 
mailed  a  letter  on  her  way  home  after  work. 

Pogue,  Matter  of  vs.  Nassau  Light  Sf  Power  Co.,  1 
N.  Y.  St.  Dep.  Rep.  429. 

Where  the  emploj'^ee  was  struck  by  a  train  and  killed 
while  walking  on  the  railroad  tracks  instead  of  on  an 
adjoining  private  road  while  returning  from  work. 

Hotaling,  Matter  of  vs.  Standard  Oil  Company,  The 
Bulletin,  Vol.  1,  No.  1,  page  12. 

An  injury  caused  by  falling  from  a  truck  upon  which 
the  employee  had  caught  a  ride  while  proceeding  from 
work  to  his  employer's  office. 

Peers,  Matter  of  vs.  De  Carion  <§•  Company,  The  Bul- 
letin, Vol.  1,  No.  2,  page  10. 

Where  the  employee  was  killed  by  falling  on  the  street 
while  at  work  resulting  in  fracture  of  the  skull,  the  fall 
being  caused  by  cardiac  syncope. 

Collins,  Matter  of  vs.  Brooklyn  Union  Gas  Co.,  171 
App.  Div.  381;  156  N.  Y.  Supp.  957;  reversing  4  N.  Y. 
St.  Dep.  Rep.  449. 

Where  the  employee  was  injured  by  stumbling  over  a 
pail  containing  broken  glass  while  making  deliveries  on 
foot. 


106  workmen's  compensation 

NewTnan,  Matter  of  vs.  Newman,  169  App.  Div.  745; 
155  N.  Y.  Supp.  665. 
(For  a  discussion  of  accidents  due  to  street  risks,  see 
opinion  in  the  above  case  by  Lyon,  J. ) 

Where  the  claimant  was  injured  by  the  dehberate  as- 
sault of  a  fellow  employee,  the  assault  having  no  con- 
nection with  the  employment. 

Claim  No.  6222,  Adam  Myers,  Matter  of  vs.  Edward  J. 
Smith,  Workmen's  Comp.  Com.,  March  29,  1915. 

Where  the  employee  fell  through  a  skylight  after  eat- 
ing her  lunch  on  the  premises  during  the  noon  hour. 

Claim  No.  21382,  Rose  Lederer,  Matter  of  vs.  Deutsch 
Brothers,  State  Industrial  Commission,  Feb.  14,  1916. 

Where  the  employee  received  an  injury  on  the  street 
while  going  from  his  home  to  the  employer's  barn. 

Claim  No.  26933,  Levi  Crouse,  Matter  of  vs.  John  J. 
Collins  <§•  Sons,  Work.  Comp.  Com.,  Feb.  5,  1915. 

Where  an  engineer  got  into  a  dispute  with  a  fireman 
who  was  visiting  the  plant,  and  ordered  him  to  leave,  re- 
sulting in  a  fight  or  scuffle  in  which  the  employee  picked 
up  a  wrench  whereupon  he  was  struck  by  the  fireman, 
fell  and  received  a  fracture  of  the  skull,  causing  death. 

Death  File  No.  248,  Herman  Ludwig,  deceased,  vs.  M. 
Groh's  Sons,  State  Industrial  Commission,  March  9,  1916. 


Where  the  injured  workman  had  an  artificial  limb 
which  was  broken  in  an  accident,  a  claim  for  a  new  arti- 
ficial limb  was  denied  upon  the  ground  that  the  injury 
was  not  a  personal  injury. 

Claim  No.  14847,  James   White,  Matter  of  vs.  Cruss 
Kemper  Co.,  State  Industrial  Com.,  Jan.  19,  1916. 


(In  connection  with  the  definition  of  injuries  subject 
to  the  compensation  law,  see  also  Part  I,  Sections  4,  13 
and  18.) 

(For  additional  cases  under  compensation  statutes  de- 
fining accidental  injuries,  see  references  to  Negligence 
and  Compensation  Cases,  Annotated,  9  N.  C.  C.  A. 
1213,  1214.) 


DISEASES    RESULTING    FROM   ACCIDENTS  107 

(For  additional  cases  construing  the  phrase  "arising 
out  of  and  in  the  course  of  the  employment"  see  refer- 
ences to  Negligence  and  Compensation  Cases,  Annotat- 
ed, 9  N.  C.  C.  A.  1224,  1225,  1226.) 

(See  also  editorials.  New  York  Law  Journal,  October 
19,  1915,  and  November  24,  1915,  in  relation  to  injuries 
resulting  from  assault  and  frolicking,  and  opinion  by 
Pound,  J.,  in  Heitz,  Matter  of  vs.  Ruppert,  decided  by 
the  Court  of  Appeals,  May  2,  1916.) 

8.      "Death"  when  mentioned  as  a  basis  for  the  right  to 
compensation  means  only  death  resulting  from  such  injury. 

DISEASES   RESULTING  FROM  ACCIDENTS. 

In  the  following  cases  the  disease  causing  the  death  of 
the  employee  was  held  to  have  naturally  and  unavoidably 
resulted  from  an  accident  injury: 

Delirium  tremens  and  alcoholic  meningitis  brought  on 
by  a  blow  from  a  falling  object. 

Dunn,  Matter  of  vs.  West  End  Brewing  Co.,  5  N.  Y. 
St.  Dep.  Rep.  113. 

Pneumonia  following  an  operation  for  hernia  caused 
by  fall. 

Moore,  Matter  of  vs.  Wm.  Harkins  Co.,  4  N.  Y.  St. 
Dep.  Rep.  383. 

Tetanus  resulting  from  an  injury  to  the  toe. 

Broderick,  Matter  of  vs.  Southern  Pacific  Co.,  4  N.  Y. 
St.  Dep.  Rep.  371. 

Heart  disease  due  to  long  hours  of  employment  and 
over-work. 

McMurray,  Matter  of  vs.  J.  J.  Little  ^  Ives  Co.,  3 
N.  Y.  St.  Dep.  Rep.  395. 

Peritonitis  and  tubercular  trouble  following  a  fracture 
of  the  leg. 

Cappelli,  Matter  of  vs.  F.  R.  Cranford,  Inc.,  The  Bul- 
letin, Vol.  1,  No.  3,  page  11. 

Pulmonary  tuberculosis  contracted  from  falling  into 
the  water. 

Rist,  Matter  of  vs.  Larkin  ^  Sangster,  171  App.  Div. 
108;156N.  Y.  Supp.  875. 


108  workmen's  compensation 

Pleurisy  following  an  injury  to  the  side. 

Henry  La  Fleur,  deceased,  Matter  of  vs.  Geo.  M.  Wood, 
Jr.,  State  Industrial  Commission,  March  14<,  1916. 

Typhoid  fever  aggravated  by  an  accident. 

George  Banks,  deceased,  vs.  Adams  Express  Co.,  State 
Industrial  Commission,  March  7,  1916. 

Cancer  aggravated  by  an  accident. 

Hans  Max  Blatt,  deceased,  vs.  ScJioenherger  <§•  Noble, 
File  No.  269,  The  Bulletin,  Vol.  1,  No.  6,  page  10. 

Septicaemia  resulting  from  an  injury  and  a  pre-ex- 
isting diseased  condition. 

Mazarizzi,  Matter  of  vs.  Ward  <§•  Tully,  170  App.  Div. 
868;  156  N.  Y.  Supp.  964. 

Lobar  pneumonia  and  alcoholic  poisoning  or  delirium 
tremens  accelerated  by  injuries  received  in  an  accident. 
Sullivan,  IVIattcr  of  vs.  Industrial  Engineering  Co.,  Aff. 
App.  Div.,  Third  Dept.,  May  2,  1916,  opinion  by  Wood- 
ward, J. 

(See  Matter  of  Plass  above,  where  death  was  due  to 
pneumonia  following  sickness  from  poison  ivy,  and 
Matter  of  Brown,  where  death  was  due  to  gangrene  fol- 
lowing an  accident. ) 

( See  also  editorial  on  "Accidental  Contraction  of  Dis- 
eases," New  York  Law  Journal,  November  26,  1915.) 

DISEASES  NOT  RESULTING  FROM  ACCIDENTS. 

In  the  following  cases  it  was  held  that  the  disease 
from  which  the  employee  died  was  not  due  to  an  acci- 
dental injury: 

Lobar  pneumonia  causing  death  42  days  after  the  am- 
putation of  a  finger. 

Stanley,  IMatter  of  vs.  Wood  <§*  Dolson  Company,  The 
Bulletin,  Vol.  1,  No.  4,  page  10. 

Where  death  was  due  to  blood  poisoning  which  did  not 
develop  from  the  accident. 

Partridge,  Matter  of  vs.  Norwich  Pharmacal  Co.,  The 
Bulletin,  Vol.  1,  No.  3,  page  10. 

Where  the  employee  died  from  natural  causes  and 
there  was  insufficient  evidence  to  establish  an  accident. 


DISEASES    EESULTIN6    FROM    ACCIDENTS  109 

Butler,  Matter  of  vs.  Sheffield  Farms,  The  Bulletin,  Vol. 
1,  No.  4,  page  11. 

Where  death  was  due  to  apoplexy  alleged  to  have  been 
induced  by  the  operation  of  a  compressed  air  drill,  the 
Commission  holding  that  the  claim  was  founded  on  con- 
jecture. 

Claim  No.  71756,  Frank  Mohr,  deceased.  Matter  of  vs. 
Fred'k  L.  Cranford,  Inc.,  The  Bulletin,  Vol.  1,  No.  6,  page 
10. 

9.     "Wages"  means  the  money  rate  at  which  the  service 
rendered  is  recompensed  under  contract  of  hiring  in  force 
at  the  time  of  the  accident,  including  the  reasonable  value 
of  board,  rent,  housing,  lodging  or  similar  advantage  re- 
ceived from  the  employer. 
Tips  will  not  be  taken  into  consideration  in  determin- 
ing the  wages  of  a  person  employed  as  a  taxicab  driver 
at  a  salary  of  $12  per  week. 

Claim  No.  14485,  Matter  of  Edgar  J.  Noonan  vs.  Yel- 
low Taxicab  Service,  State  Industrial  Commission,  March 
13,  1916. 
A  contrary  decision  was  rendered  by  the  State  In- 
dustrial Commission  on  the  question  of  tips  in  File  No. 
14084,  Warren  Sloat,  Matter  of  vs.  Rochester  Taooicah 
Co.,  on  May  12,  1916.     The  decision  in  the  Sloat  case 
was  expressed  in  the  following  resolution : 

"Resolved,  That,  as  a  result  of  Deputy  Commissioner 
Phillip's  investigation  he  finds  that  the  average  tips  re- 
ceived amounts  to  $.85  a  day,  and  the  carrier  and  the 
attorney  for  the  claimant  agree  that  the  tips  received  by 
taxicab  drivers  in  the  City  of  Rochester  and  by  this 
claimant,  amount  to  approximately  $.85  a  day,  the  Com- 
mission therefore  modifies  the  original  award  to  provide 
that  compensation  shall  be  based  upon  a  fixed  average 
of  $12.00  a  week,  plus  $5.10  received  as  tips,  making  in 
all  $17.10  per  week." 

A  person  employed  to  drive  an  automobile  in  a  racing 
contest  who  was  to  receive  a  commission  on  the  winnings 
of  his  car  and  was  to  have  a  drawing  account  of  $25  per 
week  to  be  deducted  from  any  of  his  winnings,  was  held 
to  be  an  employee  and  where  such  employee  died  from 


110  workmen's  compensation 

injuries  received  while  racing  his  car,  the  widow  was 
awarded  compensation  based  upon  a  wage  rate  of  $25 
per  week. 

Dearborn,   Matter   of  vs.   Peugeot   Auto  Import   Co., 

State    Industrial    Commission,    Feb.    3,    1916.      (Former 

award  vacated,  170  App.  Div.  93;  155  N.  Y.  Supp.  769.) 

The  Commission  has  ruled  that  wages  as  defined  by 

this  subdivision  includes  the  value  of  free  board  and  free 

rent  furnished  by  the  employer,  and  where  the  deceased 

workman  received  wages  and  also  free  rent  equal  to  $10 

per  month,  the  compensation  to  the  widow  was  based 

upon  the  average  weekly  wage  which  was  computed  by 

adding  the  value  of  the  rent  to  the  weekly  wages. 

Claim  No.  4<60,  John  L.  Sullivan,  Matter  of  vs.  Church 
E.  Gates  4^  Co.,  Workmen's  Comp.  Com.,  Dec.  8,  1914. 

10.  "State  fund"  means  the  state  insurance  fund  pro- 
vided for  in  article  five  of  this  chapter. 

11.  "Child"  shall  include  a  posthumous  child  and  a 
child  legally  adopted  prior  to  the  injury  of  the  employee; 
and  a  step-child  dependent  upon  the  deceased.  (Subd.  11, 
am'd  L.  1916,  Ch.  622,  effective  June  1,  1916.) 

In  Claim  No.  38284,  Matter  of  Morrisey  vs.  New 
York  Railways  Co.,  aff.  154  N.  Y.  Supp.  1134,  without 
opinion,  the  Commission  held  that  stepchildren  of  the  de- 
ceased employee  were  not  entitled  to  compensation.  Un- 
der the  amendment  of  1916,  effective  June  1,  1916,  step- 
children receive  compensation  if  dependent  upon  the  de- 
ceased. 

In  Death  File  No.  394,  Charles  Tremberger,  deceased, 
the  Commission  has  certified  to  the  Appellate  Division 
the  question  as  to  whether  illegitimate  children  are  en- 
titled to  death  benefits. 

12.  "Insurance  carrier"  shall  include  the  state  fund, 
stock  corporations  or  mutual  associations  with  which  em- 
ployers have  insured,  and  employers  permitted  to  pay  com- 
pensation directly  under  the  provisions  of  subdivision  three 
of  section  fifty. 

13.  "Manufacture,"  "construction,"  "operation"  and 
"installation"  shall  include  "repair,"  "demolition"  and 
"alteration."  (Subd.  13,  added  by  L.  1916,  Ch.  622,  ef- 
fective June  1,  1916.) 


LIABILITY    FOR    COMPENSATION  111 

(Note:  In  connection  with  the  effect  of  this  sub- 
division, sec  Part  I,  Sec.  11,  relating  to  casual  employ- 
ees.) 

ARTICLE  2. 

Compensation. 
Section   10.     Liability  for  compensation. 

11.  Alternative  remedy. 

12.  Compensation    not    allowed    for    first    two 

weeks. 

13.  Treatment  and  care  of  injured  employees. 

14.  Weekly  wages  basis  of  compensation. 

15.  Schedule  in  case  of  disability. 

16.  Death  benefits. 

17.  Aliens. 

18.  Notice  of  injury. 

19.  Medical  examination. 

20.  Determination  of  claims  for  compensation. 

21.  Presumptions. 

22.  Modification  of  award. 

23.  Appeals  from  the  commission. 

24.  Costs  and  fees. 

25.  Compensation,  how  payable. 

26.  Enforcement  of  payment  in  default. 

27.  Depositing  future  payments. 

28*.     Limitation  of  right  to  compensation. 

29.  Subrogation  to  remedies  of  employee. 

30.  Revenues  or  benefits  from  other  sources  not 

to  affect  compensation. 

31.  Agreement    for    contribution    by    employee 

void. 

32.  Waiver  agreements  void. 

33.  Assignments ;  exemptions. 

34.  Preferences. 

§  10.  Liability  for  compensation.  Every  employer 
subject  to  the  provisions  of  this  chapter  shall  pay  or  pro- 
vide as  required  by  this  chapter  compensation  according  to 
the  schedules  of  this  article  for  the  disability  or  death  of 
his  employee  resulting  from  an  accidental  personal  injury 
sustained  by  the  employee  arising  out  of  and  in  the  course 
of  his  emploj^ment,  without  regard  to  fault  as  a  cause  of 
such  injury,  except  where  the  injury  is  occasioned  by  the 
willful  intention  of  the  injured  employee  to  bring  about 


112      .  workmen's  compensation 

the  injury  or  death  of  himself  or  of  another,  or  where  the 
injury  results  solely  from  the  intoxication  of  the  injured 
employee  while  on  duty.     Where  the  injury  is  occasioned 
by  the  willful  intention  of  the  injured  employee  to  bring 
about  the  injury  or  death  of  himself  or  of  another,  or  where 
the  injury  results  solely  from  the  intoxication  of  the  in- 
jured employee  while  on  duty,  neither  the  injured  employee 
nor  any  dependent  of  such  employee  shall  receive  compen- 
sation under  this  chapter. 
Note:     This  section  follows  the  wording  of  the  con- 
stitutional amendment,  (Art.  1,  Section  19.)     It  makes 
the  act  compulsory  for  compensatable  injuries  without 
regard  to  fault  as  a  cause  thereof  with  the  two  exceptions 
noted  in  the  section.    That  the  compensation  law  is  com- 
pulsory was  declared  by  the  Court  of  Appeals  in  Matter 
of  Post  vs.  Burger  (|  Gohlke,  216  N.  Y.  544,  550. 

Practically  no  injuries  are  excluded  as  due  to  intoxi- 
cation because  to  show  that  an  injury  is  solely  due  to 
intoxication  is  almost  impossible  of  proof.  This  question 
was  raised  in  Matter  of  Kiernan  vs.  Freidstadt  Under- 
pinning Co.,  where  the  employee  was  sent  home  because 
he  had  been  drinking  and  was  injured  while  leaving  his 
work  in  the  subway,  but  the  award  made  by  the  Com- 
mission was  affirmed  by  the  Appellate  Division  of  the 
Supreme  Court.  No  claim  has  yet  arisen  where  the 
injury  was  due  to  the  willful  intention  of  the  employee  to 
injure  himself  or  another.  For  a  case  in  which  this  con- 
tention was  raised  in  which  the  Commission  held  to  the 
contrary  and  awarded  compensation,  see  Ignatowsky, 
Matter  of  vs.  Berman,  The  Bulletin,  Vol.  1,  No.  3,  page 
9. 

Many  compensation  statutes  exempt  injuries  due  to 
the  willful  misconduct  of  the  workman.  While  such  in- 
juries are  not  expressly  exempted  by  this  section,  it  is 
claimed  that  an  injury  due  to  the  willful  misconduct  of 
the  employee,  such  as  an  injury  due  to  the  willful  viola- 
tion of  a  rule,  does  not  arise  out  of  the  employment.  The 
Commission  has  ruled  to  the  contrary  on  this  question 
but  it  has  not  been  decided  by  the  Courts. 

Compulsory  compensation  statutes  are  also  in  force  in 
Arizona,  California,  Maryland,  Ohio,  Oklahoma,  Wash- 


EXCLUSIVE  EEMEDY  113 

ington,  Wyoming  and  Hawaii.  In  the  remaining  states 
which  have  compensation  statutes  the  law  is  optional  or 
"elective"  except  that  in  some  of  the  states,  the  law  is 
compulsory  as  to  employees  of  municipalities. 

In  the  Jensen  case  the  Court  of  Appeals  decided  that 
the  enactment  of  this  section  was  a  proper  exercise  of  the 
police  power  of  the  State  of  New  York  and  that  the  lia- 
bility prescribed  thereby  does  not  constitute  the  taking 
of  property  without  due  process  of  law  in  violation  of  the 
14th  amendment  of  the  Federal  constitution. 

The  doctrine  of  respondeat  superior  has  no  applica- 
tion in  compensation  cases  nor  are  the  rules  of  employers 
liability  for  negligence  controlling. 

Dale,  Matter  of  vs.  Saunders  Brothers,  218  N.  Y.  59. 
(Court  of  Appeals,  April  25,  1916.) 

§  11.  Alternative  remedy.  The  liability  of  an  em- 
ployer prescribed  by  the  last  preceding  section  shall  be  ex- 
clusive and  in  place  of  any  other  liability  whatsoever,  to 
such  employee,  his  personal-  representatives,  husband,  par- 
ents, dependents  or  next  of  kin,  or  anyone  otherwise  en- 
titled to  recover  damages,  at  common  law  or  otherwise  on 
account  of  such  injury  or  death,  except  that  if  an  em- 
ployer fail  to  secure  the  payment  of  compensation  for  his 
injured  employees  and  their  dependents  as  provided  in 
section  fifty  of  this  chapter,  an  injured  employee,  or  his 
legal  representative  in  case  death  results  from  the  injury, 
may,  at  his  option,  elect  to  claim  compensation  under 
this  chapter,  or  to  maintain  an  action  in  the  courts  for 
damages  on  account  of  such  injury;  and  in  such  an  action 
it  shall  not  be  necessary  to  plead  or  prove  freedom  from 
contributory  negligence  nor  may  the  defendant  plead  as 
a  defense  that  the  injury  was  caused  by  the  negligence  of 
a  fellow  servant  nor  that  the  employee  assumed  the  risk 
of  his  employment,  nor  that  the  injury  was  due  to  the 
contributory  negligence  of  the  employee.  (Section  11 
am'd  by  L.  1914,  Ch.  316,  and  as  amended  by  L.  1916, 
Ch.  622,  effective  June  1,  1916.) 

(This  section  makes  the  compensation  remedy  exclu- 
sive as  to  compensatable  injuries  where  security  is  given 
for  the  payment  of  compensation.  For  the  liability  of 
employers  who  are  not  subject  to  the  compensation  law, 


114  workmen's  compensation 

see  Article  14  of  the  Labor  Law  in  the  Appendix  here- 
to.) 

The  term  "legal  representative"  as  used  in  this  section 
means  the  dependent  or  dependents  of  the  deceasd  and 
not  the  administrator  or  the  executor  of  the  estate. 

Dearborn,  Matter  of  vs.  Peugeot  Auto  Import  Co.,  170 
App.  Div.  93 ;  155  N.  Y.  Supp.  769. 
This  section  does  not  prohibit  an  action  to  recover 
damages  for  disfigurement  nor  an  action  to  recover  dam- 
ages for  an  injury  for  which  no  compensation  is  pro- 
vided by  Section  15. 

Shinnick  vs.  Clover  Leaf  Farms,  152  N.  Y.  Supp.  649 ; 
s.  c.  154  N.  Y.  Supp.  423';  169  App.  Div.  236. 

This  section  does  not  prohibit  an  action  to  recover 
damages  by  the  administrator  on  behalf  of  next  of  kin 
not  included  as  dependents  under  Section  16. 

Shanalian,  vs.  Monarch  Engineering  Co.,  156  N.  Y. 
Supp.  143. 

(In  a  decision  handed  down  March  22,  1916,  in  Spe- 
cial Term,  in  the  case  of  Michael  Connors  vs.  Semet- 
Solvay  Co.,  Supreme  Court  Justice  Andrews  refused 
to  follow  the  decision  in  the  Shinnick  case  in  relation  to 
disfigurement,  holding  that  the  Court  of  Appeals  had 
expressed  a  contrary  view  in  the  Jensen  case,  215  N.  Y. 
514.) 

The  amendment  made  to  this  section  by  the  Laws  of 
1916  was  intended  to  exclude  actions  to  recover  damages 
for  loss  of  services,  for  an  injury  for  which  no  compensa- 
tion is  provided,  and  actions  by  dependents  who  receive 
no  compensation.  As  Section  15  was  also  amended  to 
authorize  an  award  of  compensation  for  disfigurement, 
the  amendment  bars  such  actions.  In  the  absence  of  any 
provision  in  lieu  of  damages,  the  amendment  will  doubt- 
less have  no  effect  upon  actions  to  recover  for  loss  of 
services  and  to  recover  damages  by  dependents  who  re- 
ceive no  compensation.  As  to  the  latter  class  of  cases, 
see  Part  I,  Sec.  14. 

§  12.     Compensation  not  allowed  for  first  two  weeks. 
No  compensation  shall  be  allowed  for  the  first  fourteen 


MEDICAL    TREATMENT  115 

days  of  disability,  except  the  benefits  provided  for  in  sec- 
tion thirteen  of  this  chapter. 

§  13.    Treatment  and  care  of  injured  employees.     The 
employer    shall    promptly    provide    for    an    injured    em- 
ployee such  medical,  surreal  or  other  attendance  or  treat- 
ment, nurse  and  hospital  service,  medicines,  crutches  and 
apparatus  as  may  be  required  or  be  requested  by  the  em- 
ployee, during  sixty  days  after  the  injury.     If  the  em- 
ployer fail  to  provide  the  same,  the  injured  employee  may 
do  so  at  the  expense  of  the  employer.     The  employee  shall 
not  be  entitled  to  recover  any  amount  expended  by  him 
for  such  treatment  or  services  unless  he  shall  have  request- 
ed the  employer  to  furnish  the  same  and  the  employer 
shall  have  refused  or  neglected  to  do  so.     All  fees  and 
other  charges  for  such  treatment  and  services  shall  be  sub- 
ject to  regulation  by  the  commission  as  provided  in  sec- 
tion tweny-four  of  this  chapter,  and  shall  be  limited  to 
such  charges  as  prevail  in  the  same  community  for  similar 
treatment  of  injured  persons  of  a  like  standard  of  living. 
(The  Commission  has  ruled  that  it  has  no  jurisdiction 
in  relation  to  medical  services  except  to  regulate  the  rea- 
sonableness of  the  charges  as  provided  by  this  section 
and  approve  of  claims  for  such  services  as  provided  by 
Section  24i.     After  the  medical  fees  and  charges  have 
been  regulated  and  approved  by  the  Commission,  the 
physician  must  enforce  his  claim  by  suit. ) 

Where  the  injured  workman  requests  the  employer  to 
furnish  medical  services ;  refuses  the  services  of  the  phy- 
sician selected  by  the  employer  and  employs  his  own 
physician,  the  employer  is  not  liable  for  the  expenses  of 
such  medical  treatment. 

Keigher  vs.  General  Electric  Company,  App.  Div.,  Third 
Dept.,  May  2,  1916,  opinions  by  Cochrane,  J.,  and  Kel- 
logg,  P.  J. 

Where  the  Commission  has  approved  the  account  of  a 
physician  for  medical  services  procured  by  the  employee 
and  the  amount  is  treated  as  part  of  the  compensation 
awarded  to  the  employee,  the  physician  has  no  right  of 
action  against  the  employer  for  such  medical  services, 
although  the  employee  has  assigned  to  the  physician  the 


116  workmen's  compensation 

portion  of  his  award  included  as  compensation  for  medi- 
cal services. 

Bloom  vs.  Jaffe,  94  Misc,  222;  157  N.  Y.  Supp.  926. 

In  an  action  by  a  hospital  to  recover  its  charges  for 
the  care  of  a  minor  employee  of  defendant  who  had  suf- 
fered personal  injury,  not  based  on  the  Workmen's 
Compensation  Act,  the  plaintiff  must  show  by  fair  pre- 
penderance  of  evidence  an  express  or  implied  contract 
that  defendant  would  pay  such  fees. 

Homeopathic  Hospital  of  Albany  vs.  Chalmers,  157 
N.  Y.  Supp.  1000. 

§  14.  Weekly  wages  basis  of  compensation.  Except 
as  otherwise  provided  in  this  chapter,  the  average  weekly 
wages  of  the  injured  employee  at  the  time  of  the  injury 
shall  be  taken  as  the  basis  upon  which  to  compute  com- 
pensation or  death  benefits,  and  shall  be  determined  as 
follows : 

1.  If  the  injured  employee  shall  have  worked  in  the 
employment  in  which  he  was  working  at  the  time  of  the 
accident,  whether  for  the  same  employer  or  not,  during 
substantially  the  whole  of  the  year  immediately  preceding 
his  injury,  his  average  annual  earnings  shall  consist  of 
three  hundred  times  the  average  daily  wage  or  salary 
which  he  shall  have  earned  in  such  employment  during  the 
days  when  so  employed. 

Note:  The  Commission  has  ruled  that  this  subdi- 
vision cannot  reasonably  and  fairly  be  applied  where  the 
employee  works  Sundays  as  well  as  week  days. 

After  an  investigation  it  was  determined  that  such  em- 
ployees worked  332  days  per  year  upon  an  average  and 
this  numeral  is  used  in  computing  the  average  annual 
earnings  of  employees  who  work  seven  days  per  week. 

(For  a  case  in  which  this  ruling  was  applied,  which  is 
now  on  appeal,  see  Claim  No.  29483,  Lamont  Prentiss 
vs.  New  York  State  Railways  Co.,  State  Indus.  Com., 
November  15,  1915.) 

Where  an  employee  who  was  usually  employed  as  a 
skilled  workman  at  the  rate  of  $4  per  day  but  at  the  time 
of  the  injury  because  of  slack  work,  was  working  as  a 


BASIS  OF  COMPENSATION  117 

laborer  at  the  rate  of  $2  per  day,  the  compensation  was 
based  upon  the  $2  per  day  rate  of  wages. 

Claim  No.  30288,  Edward  Burke,  Matter  of  vs.  Indtis- 

trial  Engineering  Co.,   Workmen's   Compensation   Com., 

Feb.  8,  1915. 

2.  If  the  injured  employee  shall  not  have  worked  in 
such  employment  during  substantially  the  whole  of  such 
year,  his  average  annual  earnings  shall  consist  of  three 
hundred  times  the  average  daily  wage  or  salary  which  an 
employee  of  the  same  class  working  substantially  the  whole 
of  such  immediately  preceding  year  in  the  same  or  in  a 
similar  employment  in  the  same  or  a  neighboring  place 
shall  have  earned  in  such  emplo3'ment  during  the  days 
when  so  employed. 

The  average  annual  earnings  of  extra  employees  who 
work  as  the  occasion  requires  when  called  upon  by  the 
employer  are  determined  by  the  rate  of  wages  paid  to 
regular  employees  of  the  same  class. 

Claim  No.  36456,  Christopher  Fagan,  Matter  of  vs. 
United  Traction  Co.,  State  Industrial  Commission,  Feb- 
ruary 23,  1916. 

3.  If  either  of  the  foregoing  methods  of  arriving  at  the 
annual  average  earnings  of  an  injured  employee  cannot 
reasonably  and  fairly  be  applied,  such  annual  earnings 
shall  be  such  sum  as,  having  regard  to  the  previous  earn- 
ings of  the  injured  employee  and  of  other  employees  of 
the  same  or  most  similar  class,  working  in  the  same  or  most 
similar  employment  in  the  same  or  neighboring  locality, 
shall  reasonably  represent  the  annual  earning  capacity  of 
the  injured  employee  in  the  employment  in  which  he  was 
working  at  the  time  of  the  accident; 

Note:  This  subdivision  applies  to  what  is  known 
as  seasonable  employments  which  are  only  operated  dur- 
ing a  portion  of  the  year.  The  Commission,  however, 
may  at  any  time  resort  to  this  subdivision  in  any  individ- 
ual claim  if  the  method  prescribed  by  the  two  preceding 
subdivisions  cannot  reasonably  and  fairly  be  applied. 

For  a  case  in  which  an  award  of  compensation  was  up- 
held under  subdivision  3,  see  Rhyner,  Matter  of  vs. 
Huher  Bldg.  Co.,  171  App.  Div.  71;  156  N.  Y.  Supp. 
903. 


118  workmen's  compensation 

4.  The  average  weekly  wages  of  an  employee  shall  be 
one-fifty-second  part  of  his  average  annual  earnings ; 

The  determination  of  the  average  weekly  wages  of  an 
employee  is  a  question  of  fact  and  where  there  is  any 
evidence  supporting  the  decision  of  the  Commission,  its 
determination  will  be  affirmed. 

FaircMld,  Matter  of  vs.  Pennsylvania  R.  R.  Co.,  155 
N.  Y.  Supp.  751 ;  170  App.  Div.  135. 

Friedenberg,  Matter  of  vs.  Empire  United  Railways, 
168  App.  Div.  618;  154  N.  Y.  Supp.  351. 

5.  If  it  be  established  that  the  injured  employee  was 
a  minor  when  injured  and  that  under  normal  conditions 
his  wages  would  be  expected  to  increase,  the  fact  may  be 
considered  in  arriving  at  his  average  weekly  wages. 

The  increase  of  the  wages  of  a  minor  under  normal 
conditions  may  be  taken  into  consideration  in  arriving  at 
the  average  weekly  wage  where  the  injury  results  in 
death  as  well  as  in  cases  of  disability. 

Kilberg,  Matter  of  vs.  Vitsch,  171  App.  Div.  89;  156 
N.  Y.  Supp.  971. 

For  a  disability  case  in  which  compensation  was  in- 
creased because  the  wages  of  the  injured  workman  who 
was  a  minor  were  likely  to  increase,  see 

Claim  No.  54641,  James  Norton,  Matter  of  vs.  Interna- 
tional Cork  Co.,  State  Industrial  Commission,  Sept.  22, 
1915. 

§  15.  Schedule  in  case  of  disability.  The  following 
schedule  of  compensation  is  hereby  established: 

1.     Total  permanent  disability.     In  case  of  total  disa- 
bility adjudged  to  be  permanent  sixty-six  and  two-thirds 
per  centum  of  the  average  weekly  wages  shall  be  paid  to 
the  employee  during  the  continuance  of  such  total  disabil- 
ity.    Loss  of  both  hands,  or  both  arms,  or  both  feet,  or 
both  legs,  or  both  eyes,  or  of  any  two  thereof  shall,  in  the 
absence  of  conclusive  proof  to  the  contrary,  constitute  per- 
manent total   disability.     In   all  other  cases   permanent 
total  disability  shall  be  determined  in  accordance  with  the 
facts. 
Where  the  employee  lost  one  hand  in  an  accident  and 
was  totally  disabled  because  of  the  fact  that  the  other 
hand  had  been  lost  in  an  accident  prior  to  the  enactment 


COMPENSATION   SCHEDULES  119 

of  the  compensation  law,  it  was  held  that  the  injured 
workman  was  entitled  to  compensation  for  total  per- 
manent disability  instead  of  for  a  period  of  244  weeks 
for  the  loss  of  one  hand. 

Schwab,  Matter  of  vs.  Emporium  Forestry  Co.,   167 

App.  Div.  614;  153  N.  Y.  Supp.  234;  Aff.  216  N.  Y. 

Memo.  712. 

Note:  This  decision  has  no  application  as  to  any 
injury  received  subsequent  to  May  12,  1915,  because  of 
the  amendment  to  subdivision  6  of  this  section  ( Chapter 
615,  Laws  of  1915),  under  which  in  a  case  as  above  out- 
lined the  compensation  is  limited  to  the  amount  pre- 
scribed for  the  latter  injury. 

2.  Temporary  total  disability.  In  case  of  temporary 
total  disability,  sixty-six  and  two-thirds  per  centum  of  the 
average  weekly  wages  shall  be  paid  to  the  employee  during 
the  continuance  thereof,  but  not  in  excess  of  three  thou- 
sand five  hundred  dollars,  except  as  otherwise  provided  in 
this  chapter. 

3.  Permanent  partial  disability.  In  case  of  disability 
partial  in  character  but  permanent  in  quality  the  compen- 
sation shall  be  sixty-six  and  two-thirds  per  centum  of  the 
average  weekly  wages  and  shall  be  paid  to  the  employee 
for  the  period  named  in  the  schedule  as  follows : 

Thumb.     For  the  loss  of  a  thumb,  sixty  weeks. 

First  finger.  For  the  loss  of  the  first  finger,  commonly 
called  index  finger,  forty-six  weeks. 

Second  finger.  For  the  loss  of  a  second  finger,  thirty 
weeks. 

Third  finger.  For  the  loss  of  a  third  finger,  twenty-five 
weeks. 

Fourth  finger.  For  the  loss  of  a  fourth  finger,  com- 
monly called  the  little  finger,  fifteen  weeks. 

Phalange  of  thumb  or  finger.  The  loss  of  the  first  pha- 
lange of  the  thumb  or  finger  shall  be  considered  to  be  equal 
to  the  loss  of  one-half  of  such  thumb  or  finger,  and  com- 
pensation shall  be  one-half  of  the  amount  above  specified. 
The  loss  of  more  than  one  phalange  shall  be  considered  as 
the  loss  of  the  entire  thumb  or  finger;  provided,  however, 
that  in  no  case  shall  the  amount  received  for  more  than 
one  finger  exceed  the  amount  provided  in  this  schedule 
for  the  loss  of  a  hand. 


120  workmen's  compensation 

Great  toe.  For  the  loss  of  a  great  toe,  thirty-eight 
weeks. 

Other  toes.  For  the  loss  of  one  of  the  toes  other  than 
the  great  toe.  sixteen  weeks. 

Phalange  of  toe.  The  loss  of  the  first  phalange  of  any 
toe  shall  be  considered  to  be  equal  to  the  loss  of  one-half 
of  said  toe,  and  the  compensation  shall  be  one-half  of  the 
amount  specified.  The  loss  of  more  than  one  phalange 
shall  be  considered  as  the  loss  of  the  entire  toe. 

Hand.  The  loss  of  a  hand,  two'  hundred  and  forty- 
four  weeks. 

Arm.  For  the  loss  of  an  arm,  three  hundred  and  twelve 
weeks. 

Foot.  For  the  loss  of  a  foot,  two  hundred  and  five 
weeks. 

Leg.  For  the  loss  of  a  leg,  two  hundred  and  eighty- 
eight  weeks. 

Eye.  For  the  loss  of  an  eye,  one  hundred  and  twenty- 
eight  weeks. 

Loss   of  use.      Permanent  loss   of  the  use   of  a  hand, 

arm,  foot,  leg,  eye,  thumb,  finger,  toe,  or  phalange,  shall 

be  considered  as  the  equivalent  of  the  loss  of  such  hand, 

arm,  foot,  leg,  eye,  thumb,  finger,  toe  or  phalange. 

The  amputation  of  one-third  of  the  first  phalange  of  a 

finger  constitutes  the  loss  of  the  phalange,  and,  therefore, 

the  loss  of  half  the  finger : 

Petrie,  Matter  of  vs.  Oneida  Steel  Pulley  Co.,  151 
N.  Y.  Supp.  307;  165  App.  Div.  561;  Aff.  215  N.  Y. 
335. 

Where  only  the  tip  of  the  finger  is  amputated,  an 
award  cannot  be  made  as  for  one-half  the  finger. 

Mockler,  Matter  of  vs.  Hawkes,  App.  Div.,  Third 
Dept.,  May  2,  1916;  opinion  by  Howard,  J. 

The  loss  of  the  first  phalange  and  a  portion  of  the 

second  phalange  is  "the  loss  of  more  than  one  phalange" 

and  authorizes  an  award  for  the  loss  of  the  entire  finger. 

Fortino,  Matter  of  vs.  Merchants  Desp.   Trans.  Co., 

App..  Div. ;  156  N.  Y.  Supp.  262. 

Where  the  first  phalange  is  amputated  and  the  re- 
mainder of  the  finger  rendered  useless  preventing  the 
claimant  from  working,  the  compensation  is  limited  to 
the  amount  provided  for  the  loss  of  the  entire  finger. 


COMPENSATION   SCHEDULES  121 

Feinman,  Matter  of  vs.  Albert  Mfg.  Co.,  155  N.  Y. 
Supp.  909;  170  App.  Div.  147. 

Where  the  injury  to  the  finger  results  in  ankylosis  of 
the  joints  preventing  the  claimant  from  working,  com- 
pensation is  limited  to  the  amount  prescribed  for  the  loss 
of  the  entire  finger. 

O'Neill,  Matter  of  vs.  West  Side  Storage  Warehouse 
(decided  with  Matter  of  Feinman,  above). 

The  effect  of  the  decisions  relating  to  injuries  to  fin- 
gers is  to  authorize  an  award  for  the  loss  of  the  finger 
where  there  is  loss  of  use  and  to  prevent  an  award  for  a 
greater  amount  although  the  claimant  is  disabled  from 
working  for  a  longer  period  of  time  than  the  number  of 
weeks  for  which  compensation  is  awarded  for  the  loss  of 
the  finger. 

Under  the  amendment  made  to  this  section  in  1916, 
loss  of  the  use  of  a  thumb,  finger,  toe  or  phalange,  is 
equal  to  the  loss  of  the  same. 


What  constitutes  the  loss  of  use  is  a  question  of  fact 
to  be  determined  by  the  Commission  and  in  the  follow- 
ing cases  the  award  made  for  the  loss  of  the  use  of  a  hand 
was  affirmed : — 

Where  there  was  an  amputation  of  the  index,  second 
and  third  fingers  and  the  little  finger  mutilated. 

Rockwell,  Matter  of  vs.  Lewis,  168  App.  Div.  674;  154 
N.  Y.  Supp.  893. 

Where  there  was  an  injury  to  the  hand,  the  amputa- 
tion of  the  little  finger  and  loss  of  use  of  the  three  re- 
maining fingers. 

Cunningham,  Matter  of  vs.  Buffalo  C.  ^  B.  Rolling 
Mills, App.  Div. ;  155  N.  Y.  Supp.  797. 

Where  there  was  an  amputation  of  two  phalanges  of 

the  first  finger,  more  than  two  phalanges  of  the  second 

and  third  fingers  and  one  phalange  of  the  middle  finger. 

Grammici,  Matter  of  vs.  Simon  Zimm,  Aff.  App.  Div., 

Third  Dept.,  March  8,  1916,  two  JJ.  dissenting. 


As  no  provision  is  made  in  this  subdivision  for  the  am- 
putation of  an  ear,  it  was  held  that  damages  could  be 


122  workmen's  compensation 

recovered  apart  from  the  compensation  law  for  such  an 
injury. 

Shinnick  vs.  Clover  Leaf  Farms,  169  App.  Div.  236; 
154  N.  Y.  Supp.  423 ;  152  N.  Y.  Supp.  649. 

A  view  contrary  to  the  decision  in  the  Shinnick  case 
was  expressed  by  Supreme  Court  Justice  Andrews  in  a 
decision  handed  down  at  Special  Term  March  22,  1916, 
in  the  case  of  Michael  Connors  vs.  Semet-Solvay  Co. 
(not  yet  reported) . 

The  Shinnick  case  is  no  longer  an  authority  for  the 
recovery  of  damages  for  disfigurement  as  the  amend- 
ment to  this  section,  effective  June  1,  1916,  authorizes 
the  Commission  to  make  an  award  of  compensation  for 
disfigurement. 


Where  the  claimant  received  an  injury  resulting  in  the 
loss  of  the  leg  and  other  serious  injuries,  compensation 
cannot  be  awarded  for  such  other  injuries  concurrently 
with  the  award  of  288  weeks  for  the  loss  of  the  leg. 

Friedenhurg,  Matter  of  vs.  Empire  United  Railways, 
168  App.  Div.  618;  154  N.  Y.  Supp.  351. 

Note:  Since  the  above  decision  the  Commission 
has  been  making  consecutive  awards  in  cases  where  there 
is  an  amputation  and  other  injuries  and  its  decision  in 
this  respect  has  not  as  yet  been  passed  upon  by  the 
Courts.  For  cases  on  appeal  involving  this  point  see 
O'Connell  vs.  Modern  Machine  Tool  Co.  (Feb.  26, 
1916),  and  Kossoff  vs.  R.  H.  Macy  8^  Co.  (Feb.  10, 
1916). 

Where  the  other  injuries  result  in  disability  beyond 
the  period  fixed  for  the  amputation,  compensation  is 
payable  for  the  entire  period  of  disability,  and  in  a  case 
where  the  injury  resulted  in  the  loss  of  use  of  the  third 
finger  and  general  infection  causing  disability  for  a  per- 
iod of  52  weeks,  an  award  was  made  for  25  weeks  for  the 
loss  of  the  finger  and  for  an  additional  period  of  27 
weeks  for  disability. 

Claim  No.  74369,  Bloomfield,  Matter  of  vs.  November, 
Aff.  156  N.  Y.  Supp.  1116.     (Without  opinion.) 

Where  an  award  of  19  weeks  was  made  for  disability 


COMPENSATION   SCHEDULES  123 

due  to  an  injury  to  the  eye  and  the  injury  subsequently 
resulted  in  the  loss  of  the  use  of  the  eye,  the  award  of  19 
weeks  for  disability  was  deducted  from  the  award  of  128 
weeks  made  for  the  loss  of  the  eye. 

Kreppel,  Matter  of  vs.  Boyland,  2  N.  Y.  St.  Dep.  Rep. 
489. 

Amputations.  Amputation  between  the  elbow  and  the 
wrist  shall  be  considered  as  the  equivalent  of  the  loss  of  a 
hand.  Amputation  between  the  knee  and  the  ankle  shall 
be  considered  as  the  equivalent  of  the  loss  of  a  foot.  Am- 
putation at  or  above  the  elbow  shall  be  considered  as  the 
loss  of  an  arm.  Amputation  at  or  above  the  knee  shall 
be  considered  as  the  loss  of  the  leg. 

The  compensation  for  the  foregoing  specific  injuries 
shall  be  in  lieu  of  all  other  compensation,  except  the  bene- 
fits provided  in  section  thirteen  of  this  chapter. 

In  case  of  an  injury  resulting  in  serious  facial  or  head 
disfigurement  the  commission  may  in  its  discretion,  make 
such  award  or  compensation  as  it  may  deem  proper  and 
equitable,  in  view  of  the  nature  of  the  disfigurement,  but 
not  to  exceed  three  thousand  five  hundred  dollars.  (This 
paragraph  added  by  L.  1916,  Ch.  622,  effective  June  1, 
1916.) 

Other  cases.  In  all  other  cases  in  this  class  of  disa- 
bility, the  compensation  shall  be  sixty-six  and  two-thirds 
per  centum  of  the  difference  between  his  average  weekly 
wages  and  his  wage-earning  capacity  thereafter  in  the 
same  employment  or  otherwise,  payable  during  the  continu- 
ance of  such  partial  disability,  but  subject  to  reconsidera- 
tion of  the  degree  of  such  impairment  by  the  commission 
on  its  own  motion  or  upon  application  of  any  party  in  in- 
terest. (Subd.  3,  am'd  by  L.  1916,  Ch.  622,  effective 
Junel,  1916.) 

4.  Temporary  partial  disability.  In  case  of  tempo- 
rary partial  disability,  except  the  particular  cases  men- 
tioned in  subdivision  three  of  this  section,  an  injured  em- 
ployee shall  receive  sixty-six  and  two-thirds  per  centum  of 
the  difference  between  his  average  weekly  wages  and  his 
wage  earning  capacity  thereafter  in  the  same  employment 
or  otherwise  during  the  continuance  of  such  partial  disa- 
bility, but  not  to  exceed  when  combined  with  his  decreased 
earnings  the  amount  of  wages  he  was  receiving  prior  to 
the  injury,  and  not  to  exceed  in  total  the  sum  of  three 


124  workmen's  compensation 

thousand  five  hundred  dollars,  except  as  otherwise  pro- 
vided in  this  chapter.  (Subd.  4  am'd  by  L.  1916,  Ch.  622, 
effective  June  1, 1916.) 

5.  Limitation.  The  compensation  payment  under  sub- 
divisions one,  two  and  four  and  under  subdivision  three  ex- 
cept in  case  of  the  los  sof  a  hand,  arm,  foot,  leg  or  eye,  shall 
not  exceed  fifteen  dollars  per  week  nor  be  less  than  five  dol- 
lars per  week ;  the  compensation  payment  under  subdivision 
three  in  case  of  the  loss  of  a  hand,  arm,  foot,  leg  or  eye, 
shall  not  exceed  twenty  dollars  per  week  nor  be  less  than 
five  dollars  a  week;  provided,  however,  that  if  the  employ- 
ees wages  at  the  time  of  injury  are  less  than  five  dollars  per 
week  he  shall  receive  his  full  weekly  wages. 

The  term  "wages"  as  used  in  subdivision  5  means  ac- 
tual wages  and  not  average  weekly  wages  as  determined 
by  Section  14. 

Morey,  Matter  of  vs.  Warden,  2  N.  Y.  St.  Dep.  Rep. 
494. 

An  employee  working  for  $1.20  per  day  in  an  em- 
ployment carried  on  only  90  days  during  the  year  is  en- 
titled to  the  minimum  compensation  at  the  rate  of  $5 
per  week  for  the  loss  of  an  eye. 

Morey,  Matter  of  vs.  Warden,  above. 

6.  Previous  disability.  The  fact  that  an  employee  has 
suffered  previous  disability  or  received  compensation  there- 
for shall  not  preclude  him  from  compensation  for  a  later 
injury  nor  preclude  compensation  for  death  resulting 
therefrom;  but  in  determining  compensation  for  the  later 
injury  or  death  his  average  weekly  wages  shall  be  such 
sum  as  will  reasonably  represent  his  earning  capacity 
at  the  time  of  the  later  injury,  provided,  however,  that  an 
employee  who  is  suffering  from  a  previous  disability  shall 
not  receive  compensation  for  a  later  injury  in  excess  of 
the  compensation  allowed  for  such  injury  when  consid- 
ered by  itself  and  not  in  conjunction  with  the  previous 
disability.     (Subd.  6  am'd  by  L.  1915,  Ch.  615.) 

Where  a  foreman  received  an  injury  resulting  in  the 
loss  of  the  use  of  an  arm  for  which  he  received  an  award 
of  compensation  for  312  weeks  but  returned  to  work  at 
the  same  salary  and  received  another  injury  resulting  in 
a  fracture  of  the  same  arm  which  disabled  him  from 
working  for  8  weeks,  it  was  held  that  he  was  only  en- 


COMPENSATION   SCHEDULES  125 

titled  to  the  medical  benefits  prescribed  by  Section  13  for 
the  second  injury. 

Claim  No.  43636,  TJwmas  Marley,  Matter  of  vs.  Otis 

Elevator  Company,  State  Industrial  Commission,  March 

27,  1916. 

In  a  case  where  the  claimant  had  lost  a  part  of  the 
distal  phalange  of  the  thumb  in  an  accident  fourteen 
years  ago,  and  lost  a  part  of  the  second  phalange  in  the 
accident  for  which  compensation  was  claimed,  the  award 
was  made  for  30  weeks  as  for  one-half  of  the  thumb. 
(In  this  case  the  first  accident  constituted  the  loss  of 
one-half  the  thumb  and  the  second  accident  constitut- 
ed the  loss  of  the  entire  thumb,  but  the  compensation 
was  limited  under  this  subdivision  to  the  later  injury.) 

Claim  No.  13861.     Andrew  J.  Anderson,  Matter  of  vs. 

Ajnerican  Mfg.  Co.,  State  Industrial  Commission,  March 

20,  1916. 

?'.  Permanent  total  disability  after  permanent  partial 
disabilit3\  If  an  employee  who  has  previously  incurred 
permanent  partial  disability  through  the  loss  of  one 
hand,  one  arm,  one  foot,  one  leg,  or  one  eye,  incurs  per- 
manent total  disability  through  the  loss  of  another  member 
or  organ,  he  shall  be  paid,  in  addition  to  the  compensation 
for  permanent  partial  disability  provided  in  this  section 
and  after  the  cessation  of  the  payments  for  the  prescribed 
period  of  weeks  special  additional  compensation  for  the 
'remainder  of  his  life  to  the  amount  of  sixty-six  and  two- 
thirds  per  centum  of  the  average  weekly  wage  earned  by 
him  at  the  time  the  total  permanent  disability  was  incur- 
red. Such  additional  compensation  shall  be  paid  out  of  a 
special  fund  created  for  such  purpose  in  the  following 
manner:  The  insurance  carrier  shall  pay  to  the  state 
treasurer  for  every  case  of  injury  causing  death  in  which 
there  are  no  persons  entitled  to  compensation  the  sum  of 
one  hundred  dollars.  The  state  treasurer  shall  be  the 
custodian  of  this  special  fund,  and  the  commission  shall 
direct  the  distribution  thereof.  (Subd.  7  added  by  L. 
1916,  Ch.  622,  effective  June  1,  1916.) 

§  16.  Death  benefits.  If  the  injury  causes  death,  the 
compensation  shall  be  known  as  a  death  benefit  and  shall 
be  payable  in  the  amount  and  to  or  for  the  benefit  of  the 
persons  following: 


126  workmen's  compensation 

1.  Reasonable  funeral  expenses  not  exceeding  one  hun- 
dred dollars. 

An  award  of  $100  to  the  brother-in-law  of  tlxe  deceas- 
ed "for  his  services  in  the  matter  of  funeral  expenses  and 
burial"  of  deceased  was  reversed  in  the  absence  of  proof 
showing  the  payment  of  the  amount  or  liability  for  the 
payment  of  the  same. 

File  No.  575,  August  Tirre,  deceased,  vs.  Bush  Termi- 
nal Co.,  St.  Ind.  Com.  Oct.  27,  1915;  App.  Div.,  Third 
Dept.,  May  2,  1916,  opinion  by  Lyon,  J. 

2.  If  there  be  a  surviving  wife  (or  dependent  hus- 
band) and  no  child  of  the  deceased  under  the  age  of 
eighteen  years,  to  such  wife  (or  dependent  husband)  thirty 
per  centum  of  the  average  wages  of  the  deceased  during 
widowhood  (or  dependent  widowerhood)  with  two  years' 
compensation  in  one  sum,  upon  remarriage;  and  if  there 
be  surviving  child  or  children  of  the  deceased  under  the 
age  of  eighteen  years,  the  additional  amount  of  ten  per 
centum  of  such  wages  for  each  such  child  until  of  the  age 
of  eighteen  years ;  in  case  of  the  subsequent  death  of  such 
surviving  wife  (or  dependent  husband)  any  surviving  child 
of  the  deceased  employee,  at  the  time  under  eighteen  years 
of  age,  shall  have  his  compensation  increased  to  fifteen  per 
centum  of  such  wages,  and  the  same  shall  be  payable  until 
he  shall  reach  the  age  of  eighteen  years ;  provided  that  the 
total  amount  payable  shall  in  no  case  exceed  sixty-six  and 
two-thirds  per  centum  of  such  wages.  The  commission  may 
in  its  discretion  require  the  appointment  of  a  guardian  for 
the  purpose  of  receiving  the  compensation  of  a  minor  child. 
In  the  absence  of  such  a  requirement  by  the  commission  the 
appointment  of  a  guardian  for  such  purposes  shall  not  be 
necessary.  (Subd.  2  am'd  by  L.  1916,  Ch.  622,  effective 
June  1,  1916.) 

Award  of  compensation  may  be  made  to  a  surviving 
wife  who  was  married  to  the  deceased  employee  subse- 
quent to  the  date  of  the  accident. 

Claim  No.  48329.  Crockett,  Matter  of  vs.  State  Insur- 
ance Fund,  Appeal  dismissed,  155  N.  Y.  Supp.  692.  170 
App.  Div.  122. 

Where  there  is  a  surviving  wife  and  children,  the  com- 
pensation for  the  children  may  be  paid  to  the  mother 
without  the  appointment  of  a  guardian. 


DEATH    BENEFITS  127 

Woodcock,  Matter  of  vs.  Walker,  170  App.  Div.  4;  155 
N.  Y.  Supp.  702. 

The  common  law  wife  of  a  deceased  employee  is  a 
lawful  surviving  wife  and  entitled  to  compensation. 

Claim  No.  58081,  Ziegler,  Matter  of  vs.  P.  Cassidy's 
Sons.    Aif.  155  N.  Y.  Supp.  1151.    (Without  opinion.) 

For  cases  in  which  the  facts  do  not  establish  a  com- 
mon law  marriage,  see 

Chicchetti,  Matter  of  vs.  Interborough  Rapid  Transit 
Co.,  The  Bulletin,  Vol.  1,  No.  2,  page  10. 

Claim  No.  70063,  Thomas  J.  McNeill,  deceased,  vs.  F. 
Holman  (§•  Sons,  Inc.,  State  Industrial  Commission,  March 
7,  1916.    The  Bulletin,  Vol.  1,  No.  6,  page  4. 

See  also  Matter  of  Hinman,  147  App.  Div.  452,  in 
which  it  was  held  that  Chapter  742  of  the  Laws  of  1907, 
which  repealed  Section  19  of  the  Domestic  Relations 
Law  as  added  by  Chapter  339  of  the  Laws  of  1901,  re- 
stored common  law  marriages  in  New  York  State.  This 
case  was  affirmed  by  the  Court  of  Appeals  (206  N.  Y. 
653)  without  that  Court  passing  upon  the  validity  of 
common  law  marriages. 

3.  If  there  be  surviving  child  or  children  of  the  de- 
ceased under  the  age  of  eighteen  years,  but  no  surviving 
wife  (or  dependent  husband)  then  for  the  support  of  each 
such  child  until  of  the  age  of  eighteen  years,  fifteen  per 
centum  of  the  wages  of  the  deceased,  provided  that  the 
aggregate  shall  In  no  case  exceed  sixty-six  and  two-thirds 
per  centum  of  such  wages. 

4.  If  there  be  no  surviving  wife  (or  dependent  hus- 
band) or  child  under  the  age  of  eighteen  years  or  If  the 
amount  payable  to  surviving  wife  (or  dependent  husband) 
and  to  children  under  the  age  of  eighteen  years  shall  be  less 
In  the  aggregate  than  sixty-six  and  two-thirds  per  centum 
of  the  average  wages  of  the  deceased,  then  for  the  support 
of  grandchildren  or  brothers  and  sisters  under  the  ago  of 
eighteen  years,  if  dependent  upon  the  deceased  at  the  time 
of  the  accident,  fifteen  per  centum  of  such  wages  for  the 
support  of  each  such  person  until  of  the  age  of  eighteen 
years ;  and  for  the  support  of  each  parent,  or  grandparent, 
of  the  deceased  If  dependent  upon  him  at  the  time  of  the 
accident,  twenty-five  per  centum  of  such  wages  during  such 
dependency.     But  in  no  case  shall  the  aggregate  amount 


128  workmen's  compensation 

payable  under  this  subdivision  exceed  the  difference  be- 
tween sixty-six  and  two-thirds  per  centum  of  such  wages, 
and  the  amount  payable  as  hereinbefore  provided  to  sur- 
viving wife  (or  dependent  husband)  or  for  the  support  of 
surviving  child  or  children.  (Subd.  4,  am'd  by  L.  1916, 
Ch.  622,  effective  June  1,  1916.) 

Any  excess  of  wages  over  one  hundred  dollars  a  month 
shall  not  be  taken  into  account  in  computing  compensa- 
tion under  this  section.     All  questions  of  dependency  shall 
be  determined  as  of  the  time  of  the  accident. 
The  dependents  of  an  unmarried  employee  are  en- 
titled to  compensation. 

Friscia,  Matter  of  vs.  Drake  Brothers  Co.,  153  N.  Y. 
Supp.  392 ;  167  Aff.  Div.  496. 

Parents  may  be  dependent  upon  the  wages  of  a  minor 
son. 

Friscia,  Matter  of  vs.  Drake  Brothers  Co.  (above). 

A  sister  under  18  years  of  age  is  a  dependent  as  well 

as  the  parents,  where  the  wages  of  the  deceased  employee 

are  paid  to  the  parents  for  the  support  of  the  family. 

Walz,  Matter  of  vs.  Holbrook,  Cabot  Sf  Rollins  Corp. 

170  App.  Div.  6;  155  N.  Y.  Supp.  703. 

Both  a  mother  and  grandmother  may  receive  compen- 
sation as  dependents  of  one  employee. 

Claim  No.  6522,  Ramsey,  Matter  of  vs.  Fairbanks  Morse 
Sf  Co.,  155  N.  Y.  Supp.  1136. 

Next  of  kin  not  included  in  this  Section  as  dependents 
may  sue  for  damages  at  common  law. 

Shanahan    vs.    Monarch    Engineering    Company,    156 
N.  Y.  Supp.  143. 

Dependency  is  a  question  of  fact  and  the  award  will 
be  affirmed  where  there  is  evidence  supporting  the  find- 
ings of  the  Commission. 

Rhifner,  Matter  of  vs.  Huber  Building  Co.,  171  App. 
Div.  71 ;  156  N.  Y.  Supp.  903. 

Any  degree  of  dependency  is  sufficient  to  support  an 
award  of  compensation. 

Walz,  Matter  of  vs.  Holbrook,  Cabot  4*  Rollins  Co. 
( above) . 


DEATH   BENEFITS  129 

Where  the  deceased  employee  was  contributing  to  a 
fund  to  be  used  to  purchase  a  house  it  was  held  that  the 
mother  .and  sister  were  not  dependents. 

Claim  No.  32853.  Kolb,  Matter  of  vs.  Borden's  Con- 
densed Milk  Co.,  4  N.  Y.  St.  Dep.  Rep.  347 ;  Aff.  App.  Div. 
Third  Dept.,  May  2,  1916. 

Awards  are  made  to  the  dependents  under  Subdivision 
4  "during  dependency"  and  where  it  appeared  that  the 
father  of  the  deceased  was  no  longer  dependent,  the 
award  of  compensation  was  suspended. 

Claim  No.  50467,  George  Klinger,  Jr.,  Matter  of  vs.  J. 
Odell  Whitenack,  State  Industrial  Commission,  July  26, 
1915. 

Where  the  father  of  the  deceased  is  a  non-resident, 
proof  of  needy  circumstances  b}^  affidavit,  together  with 
direct  proof  that  the  deceased  was  in  the  habit  of  sending 
funds  to  his  father,  is  held  sufficient  to  establish  de- 
pendency. 

Claim  No.  30667,  Francesco  P.  Brio,  deceased,  Matter 
of  vs.  Carpenter,  Boxley  <§-  Herrick,  The  Bulletin,  Vol.  1, 
No.  5,  page  11. 

Where  the  dependent  is  the  mother  of  the  deceased 
and  lives  in  a  foreign  country,  an  award  of  compensa- 
tion based  solely  on  hearsay  evidence  to  the  effect  that 
the  deceased  had  sent  money  to  his  mother,  was  reversed. 
File  No.  575,  August  Tirre,  deceased,  vs.  Bush  Terminal 
Co.,  St.  Ind.  Com.,  Oct.  27,  1915;  App.  Div.,  Third  Dept., 
May  2,  1916,  opinion  by  Lyon,  J. 

In  making  compensation  to  the  dependents  of  a  minor, 
the  Commission  may  take  into  consideration  the  fact  that 
his  wages  would  be  expected  to  increase.  Determination 
of  wages  of  the  deceased  does  not  involve  a  question  of 
dependency. 

Kilberg,  Matter  of  vs.  V.  S.  Vitsch,  171  App.  Div.  89 ; 
156  N.  Y.  Supp.  971. 

§  17.  Aliens.  Compensation  under  this  chapter  to 
aliens  not  residents  (or  about  to  become  nonresidents)  of 
the  United  States  or  Canada,  shall  be  the  same  in  amount 
as  provided  for  residents,  except  that  dependents  in  any 
foreign  country  shall  be  limited  to  surviving  wife  and  child 


130  workmen's  compensation 

or  children,  or,  if  there  be  no  surviving  wife  or  child  or 
children,  to  surviving  father  or  mother,  or  grandfather  or 
grandmother,  whom  the  employee  has  supported,  either 
wholly  or  in  part,  for  the  period  of  one  year  prior  to  the 
date  of  the  accident,  and  except  that  the  commission  may, 
at  its  option,  or  upon  the  application  of  the  insurance 
carrier,  shall,  commute  all  future  installments  of  compen- 
sation to  be  paid  to  such  aliens,  by  paying  or  causing  to 
be  paid  to  them  one-half  of  the  commuted  amount  of  such 
future  installments  of  compensation  as  determined  by  the 
commission.  (As  am'd  by  L.  1916,  Ch.  622,  effective 
June  1,  1916.) 
An  alien  receiving  compensation  for  temporary  total 
disability  is  entitled  to  full  compensation  notwithstand- 
ing the  fact  that  he  becomes  a  non-resident. 

Williams,  Matter  of  vs.  Electric  Carbon  Co.^  4  N.  Y.  St. 
Dep.  Rep.  439. 

§  18.  Notice  of  injury.  Notice  of  an  injury  for  which 
compensation  is  payable  under  this  chapter  shall  be  given 
to  the  commission  and  to  the  employer  within  ten  days  after 
disability,  and  also  in  case  of  the  death  of  the  employee  re- 
sulting from  such  injury,  within  thirty  days  after  such 
death.  Such  notice  may  be  given  by  any  person  claiming 
to  be  entitled  to  compensation,  or  by  some  one  in  his  be- 
half. The  notice  shall  be  in  writing,  and  contain  the  name 
and  address  of  the  employee  and  state  in  ordinary  language 
the  time,  place,  nature  and  cause  of  the  injury,  and  be 
signed  by  him  or  by  a  person  on  his  behalf  or,  in  case  of 
death,  by  any  one  or  more  of  his  dependents  or  by  a  person 
on  their  behalf.  It  shall  be  given  to  the  commission  by 
sending  it  by  mail,  by  registered  letter,  addressed  to  the 
commission  at  its  office.  It  shall  be  given  to  the  employer 
by  delivering  it  to  him  or  sending  it  by  mail,  by  registered 
letter,  addressed  to  the  employer  at  his  or  its  last  known 
place  of  residence ;  provided  that,  if  the  employer  be  a  part- 
nership then  such  notice  maj^  be  so  given  to  any  one  of 
the  partners,  and  if  the  employer  be  a  corporation,  then 
such  notice  may  be  given  to  any  agent  or  officer  thereof 
upon  whom  legal  process  may  be  served,  or  any  agent  in 
charge  of  the  business  in  the  place  where  the  injury  oc- 
curred. The  failure  to  give  such  notice,  unless  excused  by 
the  commission  either  on  the  ground  that  notice  for  some 
sufficient  reason  could  not  have  been  given,  or  on  the  ground 


NOTICK  OF  INJUEY  131 

that  the  state  fund,  insurance  company,  or  employer,  as 
the  case  may  bo,  has  not  been  prejudiced  thereby,  shall 
be  a  bar  to  any  claim  under  this  chapter. 
Where  the  accident  happened  in  February  and  the 
claimant  remained  at  work  until  June,  when  she  stop- 
ped work  because  of  the  accident,  at  which  time  the 
claimant  gave  notice  of  injury,  failure  to  give  written 
notice  within  ten  days  was  excused. 

Claim  No.  72766,  Gray,  Matter  of  vs.  De  Jong,  Aff. 
App.  Div.,  Third  Dept.,  March  8,  1916.  (Without  opin- 
ion.) 

Where  the  injured  workman  told  her  employer  three 
days  after  the  accident,  that  she  had  been  injured,  fail- 
ure to  give  written  notice  was  excused. 

Claim  No.  74369,  Bloomfield,  Matter  of  vs.  November, 
Aff.  156  N.  Y.  Supp.  1116.     (Without  opinion.) 

Where  the  injured  workman  failed  to  give  written 
notice  of  injury  until  77  days  after  the  accident,  but  was 
treated  for  the  injury  by  the  company's  physician,  fail- 
ure to  give  written  notice  under  this  section  was  ex- 
cused. 

File  No.  5465,  Marrianicco,  Matter  of  vs.  Flinn- 
O'Rourke  Company,  App.  Div.,  Third  Dept.,  May  2, 1916 ; 
opinion  by  Lyon,  J. 

§  19.  Medical  examination.  An  employee  Injured  claim- 
ing or  entitled  to  compensation  under  this  chapter  shall, 
if  requested  by  the  commission,  submit  himself  for 
medical  examination  at  a  time,  and  from  time  to  time,  at  a 
place  reasonably  convenient  for  the  employee,  and  as  may 
be  provided  by  the  rules  of  the  commission.  If  the  em- 
ployee or  the  insurance  carrier  request  he  shall  be  entitled 
to  have  a  physician  or  physicians  of  his  own  selection  to  be 
paid  by  him  present  to  participate  in  such  examination.  If 
an  employee  refuse  to  submit  himself  to  examination,  his 
right  to  prosecute  any  proceeding  under  this  chapter  shall 
be  suspended,  and  no  compensation  shall  be  payable,  for  the 
period  of  such  refusal. 

§  20.  Determination  of  claims  for  compensation.  At 
any  time  after  the  expiration  of  the  first  fourteen  days  of 
disability  on  the  part  of  an  injured  employee,  or  at  any 
time  after  his  death,  a  claim  for  compensation  may  be 


132  woekmen's  compensation 

presented  to  the  employer  and  if  rejected  or  if  within  ten 
days  after  presentation,  a  report  containing  an  agreement 
for  compensation  be  not  made  and  filed  with  the  commission 
as  provided  by  this  section,  the  claim  may  be  presented  to 
the  commission.  The  commission  shall  have  full  power  and 
authority  to  determine  all  questions  in  relation  to  the  pay- 
ment of  claims  presented  to  it  for  compensation  under  the 
provisions  of  this  chapter.  The  commission  shall  make 
or  cause  to  be  made  such  investigations  as  it  deems  neces- 
sary, and  upon  application  of  either  party,  shall  order  a 
hearing,  and  within  thirty  days  after  a  claim  for  compen- 
sation is  submitted  under  this  section,  or  such  hoaring 
closed,  shall  make  or  deny  an  award,  determining  such 
claim  for  compensation,  and  file  the  same  in  the  office  of  the 
commission,  together  with  a  statement  of  its  conclusions  of 
fact  and  rulings  of  law.  The  commission  may  before  mak- 
ing an  award,  require  the  claimant  to  appear  before  an 
arbitration  committee  appointed  by  it  and  consisting  of  one 
representative  of  employees,  one  representative  of  employ- 
ers, and  either  a  member  of  the  commission  or  a  person 
specially  deputized  by  the  commission  to  act  as  chairman, 
before  which  the  evidence  in  regard  to  the  claim  shall  be 
adduced  and  by  which  it  shall  be  considered  and  reported 
upon.  Immediately  after  such  filing  the  commission  shall 
send  to  the  parties  a  copy  of  the  decision.  Upon  a  hearing 
pursuant  to  this  section  either  party  may  present  evidence 
and  be  represented  by  counsel.  The  decision  of  the  com- 
mission shall  be  final  as  to  all  questions  of  fact,  and,  except 
as  provided  in  section  twenty-three,  as  to  all  questions  of 
law.  When  a  claim  is  presented  to  an  employer,  and  the 
employer  and  employee,  or  in  case  of  death,  his  principal 
dependent,  enter  into  an  agreement  for  the  payment  of 
compensation  therefor  pursuant  to  this  chapter,  a  joint 
report  of  such  claim  containing  such  agreement  shall  be 
made  to  the  commission  upon  a  form  prepared  by  it  and 
signed  by  the  employer  and  employee,  or  in  case  of  death 
his  principal  dependent.  The  commission  shall  examine 
such  report  and  approve  the  same  when  the  terms  are 
strictly  in  accordance  with  this  chapter  and  such  approval 
shall  constitute  an  award.  However,  the  commission  may 
make  an  award  in  the  manner  provided  in  this  section  in 
any  case,  and  if  the  terms  of  the  award  vary  from  the  joint 
report,  the  employer  shall  comply  with  the  award.  In 
case  of  unfair  dealing  or  of  bad  faith  on  the  part  of  the 


DETERMINATION   OF   CLAIMS  133 

employer  under  this  section,  the  commission  may  impose  a 
penalty  of  not  more  than  ten  per  centum  of  the  award. 
(As  am'd  by  L.  1915,  Ch.  167.) 
The  decision  of  the  Commission  upon  a  question  of 
fact  is  final  and  the  award  will  be  affirmed  where  there 
is  any  evidence  supporting  the  findings  of  the  Commis- 
sion. 

Goldstein,  Matter  of  vs.  Center  Iron  Works,  167  App. 
Div.  526;  153  N.  Y.  Supp.  224. 

.  Dale,  Matter  of  vs.  Saunders  Bros.,  218  N.  Y.  59,  63, 
(Court  of  Appeals,  April  25,  1916). 

Where  the  evidence  was  conflicting  as  to  whether  the 
death  of  the  injured  workman  was  caused  by  a  fall,  by 
an  electric  shock,  or  from  natural  causes,  the  finding  of 
the  Commission  that  death  was  due  to  an  electric  shock 
will  not  be  disturbed. 

Claim  No.  24887,  Broleski,  Matter  of  vs.  Nichols  Copper 
Co.,  Aff.  155  N.  Y.  Supp.  1096.     (Without  opinion.) 

Upon  an  appeal  from  an  award  the  Court  may  exam- 
ine the  evidence  to  supplement  the  findings  of  fact  made 
by  the  Commission. 

Gleisner,  Matter  of  vs.  Gross  Sf  Herhener,  170  App.  Div. 
37 ;  155  N.  Y.  Supp.  946. 

Whether  there  is  any  evidence  supporting  a  finding 
of  fact  as  made  by  the  Commission  remains  a  question  of 
law  and  the  award  will  be  reversed  where  there  is  no 
such  evidence. 

Collins,  Matter  of  vs.  Brooklyn  Union  Gas  Co.,   171 
App.  Div.  381 ;  156  N.  Y.  Supp.  957. 

Gleisner,  Matter  of  vs.  Gross  ^  Herhener,  above. 

An  award  of  compensation  was  reversed  and  the  case 
remanded  to  the  Commission  for  further  hearing  where 
the  insurance  carrier  was  denied  an  opportunity  to  cross- 
examine  the  claimant. 

Claim    No.    6522,   Ramsey,   Matter   of   vs.   Fairbanks 
Morse  <§-  Co.,  155  N.  Y.  Supp.  1136. 

It  seems  that  the  Court  has  power  to  reverse  the  award 
and  direct  a  further  hearing  where  the  Commission  de- 
nies an  application  to  re-open  the  case  for  the  purpose 
of  taking  additional  testimony. 


134  workmen's  compensation 

Dearborn,  Matter  of  vs.  Peugeot  Auto  Import  Co.,  170 
App.  Div.  93 ;  155  N.  Y.  Supp.  769. 

An  award  made  upon  the  consent  of  a  representative 
of  the  insurance  carrier  will  not  be  disturbed  upon  ap- 
peal. 

Cunningham,  Matter  of  vs.  Buffalo  C.  Sf  B.  Rolling 
Mills, App.  Div. ;  155  N.  Y.  Supp.  797. 

If  there  are  no  facts  and  the  decision  of  the  Commis- 
sion is  arbitrary,  unfair  and  unreasonable,  a  question  of 
law  arises  which  may  be  determined  by  the  Courts. 

Rhyner,  Matter  of  vs.  Huher  Bldg.  Const.  Co.,  171  App. 
Div.  71 ;  156  N.  Y.  Supp.  903. 

When  the  findings  of  the  Commission  are  without  evi- 
dence and  in  direct  conflict  with  the  undisputed  facts, 
and  all  reasonable  inference  which  may  be  drawn  from 
them,  its  determination  may  be  reversed  as  error  of  law. 
Gardner,  Matter  of  vs.  Horsehead's  Construction  Co., 
171  App.  Div.  66;  156  N.  Y.  Supp.  899. 

§  20-a.  Payments  of  moneys  in  advance  of  award  by 
commission.  Any  employer  shall  upon  the  making  of  the 
agreement  provided  for  in  section  twenty  advance  to  any 
injured  employee  or  to  the  principal  dependent  of  a  de- 
ceased employee,  the  payment  or  payments  provided  for 
in  the  agreement,  in  return  for  which  he  shall  receive  a 
receipt  on  a  form  supplied  by  the  commission  and  signed 
by  the  person  receiving  the  money,  which  receipt  shall 
specifically  state  in  what  capacity  the  signer  acted  while 
so  receiving  such  money;  such  receipt  shall  be  forwarded 
to  the  commission  within  forty-eight  hours  after  date  of 
its  issuance  and  the  sum  stated  on  its  face  shall  be  returned 
to  said  employer  as  provided  in  section  twenty-five. 

Prior  to  the  making  of  said  agreement  or  in  the  event 
of  no  agreement,  any  employer  may  at  his  option  advance 
to  any  injured  employee  or  to  the  principal  dependent 
of  a  deceased  employee  any  sum  of  money,  in  return  for 
which  he  shall  receive  a  receipt  on  a  form  supplied  by  the 
commission  and  signed  by  the  person  receiving  the  money, 
which  receipt  shall  specifically  state  in  what  capacity  the 
signer  acted  while  so  receiving  such  money;  such  receipt 
shall  be  forwarded  to  the  commission  within  forty-eight 
hours  after  date  of  its  issuance.     Should  any  agreement 


PEESUMPTIONS  135 

or  award  be  made  the  sum  so  stated  on  the  face  of  the  re- 
ceipt shall  be  credited  to  the  payment  under  the  award 
or  agreement  and  shall  be  repaid  as  hereinbefore  provided. 
Any  money  so  advanced  shall  be  at  the  employer's  risk. 
(Added  by  L.  1915,  Ch.  168.) 

§  21,  Presumptions.  In  any  proceeding  for  the  en- 
forcement of  a  claim  for  compensation  under  this  chapter, 
it  shall  be  presumed  in  the  absence  of  substantial  evidence 
to  the  contrary 

1.  That  the  claim  comes  within  the  provisions  of  this 
chapter ; 

2.  That  sufficient  notice  thereof  was  given ; 

3.  That  the  injury  was  not  occasioned  by  the  willful 
intention, of  the  injured  employee  to  bring  about  the  in- 
jury or  death  of  himself  or  of  another; 

4.  That  the  injury  did  not  result  solely  from  the  in- 
toxication of  the  injured  employee  while  on  duty. 

Where  the  employer  fails  to  report  all  the  facts  the 
Commission  is  justified  in  assuming  that  the  injury  was 
due  to  a  hazardous  employment. 

McQueeney,  Matter  of  vs.  Sutphen  Sf  Meyer,  167  App. 
Div.  528;  153  N.  Y.  Supp.  554. 

Kohler,  Matter  of  vs.  Frohmann,  167  App.  Div.  533; 
153  N.  Y.  Supp.  559. 

Larsen,  Matter  of  vs.  Paine  Drug  Co., N.  Y. , 

(Ct.  of  Appeals,  May  12,  1916,  opinion  by  Hiscock,  J.) 

There  must  be  evidence  that  the  claimant  met  with  an 
accident  which  arose  out  of  and  in  the  course  of  the 
employment  before  the  presumptions  created  by  this 
section  will  apply. 

Collins,  Matter  of  Brooklyn  Union  Gas  Co.,  171  App. 
Div.  381 ;  156  N.  Y.  Supp.  957. 

The  Commission  will  require  evidence,  either  direct 
or  circumstantial,  that  the  accident  happened,  before  the 
presumption  established  by  the  statute  can  arise. 

Jas.  J.  Hiland,  deceased.  Matter  of  vs.  D.  Winant,  Inc., 
The  Bulletin,  Vol.  1,  No.  2,  pp.  9,  10. 

"The  presumption  raised  by  Section  21  of  the  Act  that 
the  case  comes  within  the  Act  does  not  permit  the  words 
of  the  statute  to  be  warped  from  their  usual  and  ordinary 
meaning.    It  relates  more  to  the  facts :  as  far  as  it  affects 


136  workmen's  compensation 

the  construction  of  the  statute  itself  it  can  only  be  ma- 
terial as  indicating  that  the  statute  is  a  remedial  one  and 
should  be  given  a  liberal  construction  in  order  to  carry 
out  the  beneficial  purposes  intended  to  be  accomplished 
by  the  Law.*^ 

Tomassi,  Matter  of  vs.  Christensen,  171  App.  Div.  284; 
156  N.  Y.  Supp.  905. 

§  22.  Modification  of  award.  Upon  its  own  motion  or 
upon  the  application  of  any  party  in  interest,  on  the 
ground  of  a  change  in  conditions,  the  commission  may  at 
any  time  review  any  award,  and,  on  such  review,  may  make 
an  award  ending,  diminishing  or  increasing  the  compensa- 
tion previously  awarded,  subject  to  the  maximum  or  mini- 
mum provided  in  this  chapter,  and  shall  state  its  conclu- 
sions of  fact  and  rulings  of  law,  and  shall  immediately 
send  to  the  parties  a  copy  of  the  award.  No  such  review 
shall  affect  such  award  as  regards  any  moneys  already 
paid.     (See  also  Section  74.) 

§  23.  Appeals  from  the  commission.  An  award  or  de- 
cision of  the  commission  shall  be  final  and  conclusive  upon 
all  questions  within  its  jurisdiction,  as  against  the  state 
fund  or  between  the  parties,  unless  within  thirty  days  after 
a  copy  of  such  award  or  decision  has  been  sent  to  the  par- 
ties, an  appeal  be  taken  to  the  appellate  division  of  the 
supreme  court  of  the  third  department.  The  commission 
may  also,  in  its  discretion,  on  the  application  of  either 
party,  certify  to  such  appellate  division  of  the  supreme 
court,  questions  of  law  involved  in  its  decision.  Such  ap- 
peals and  the  questions  so  certified  shall  be  heard  in  a 
summary  manner  and  shall  have  precedence  over  all  other 
civil  cases  in  such  court.  The  commission  shall  be  deemed 
a  party  to  every  such  appeal,  and  the  attorney-general, 
without  extra  compensation,  shall  represent  the  commis- 
sion thereon.  An  appeal  may  also  be  taken  to  the  court 
of  appeals  in  all  cases  where  the  decision  of  the  appellate 
division  is  not  unanimous  and  by  the  consent  of  the  ap- 
pellate division  or  a  judge  of  the  court  of  appeals  where 
the  decision  of  the  appellate  division  is  unanimous  in  the 
same  manner  and  subject  to  the  same  limitations  not  in- 
consistent herewith  as  is  now  provided  in  civil  actions.  It 
shall  not  be  necessary  to  file  exceptions  to  the  rulings  of 
the  commission.  The  commission  shall  not  be  required  to 
file  a  bond  upon  an  appeal  by  it  to  the  court  of  appeals. 


APPEALS  137 

Otherwise  such  appeals  shall  be  subject  to  the  law  and 
practice  applicable  to  appeals  in  civil  actions.  Upon  the 
final  determination  of  such  an  appeal,  the  commission  shall 
make  an  award  or  decision  in  accordance  therewith.  (Sec. 
23,  am'd  by  L.  1916,  Ch.  622,  effective  June  1,  1916.) 
Upon  an  appeal  from  an  award  made  by  the  Commis- 
sion, the  compensation  law  will  be  liberally  construed. 

Petrie,   Matter   of   vs.   Oneida  Steel   Pulley   Co.,   165 
App.  Div.  561 ;  151  N.  Y.  Supp.  307;  215  N.  Y.  335. 

Rheinwald,  JMatter  of  vs.  Builders  Brick  ^  Supply  Co., 
168  App.  Div.  425;  153  N.  Y.  Supp.  598. 

Smith,  Matter  of  vs.  Price,  168  App.  Div.  421;  153 
N.  Y.  Supp.  221. 

Where  the  decision  of  the  Appellate  Division  is  unani- 
mous, the  appeal  cannot  be  taken  to  the  Court  of  Ap- 
peals except  with  the  permission  either  of  the  Appellate 
Division  or  a  judge  of  the  Court  of  Appeals. 

Harnett,  Matter  of  vs.  Thos.  J.  Steen  Co.,  216  N.  Y. 
101. 

Employers  insured  in  the  State  Fund  cannot  appeal 
from  a  decision  of  the  Commission  making  award  of 
compensation  against  the  State  Insurance  Fund. 

Crockett,  Matter  of  vs.  State  Insurance  Fund,  170  App. 
Div.  122 ;  155  N.  Y.  Supp.  692. 

In  view  of  the  fact  that  the  Compensation  Law  is  simi- 
lar in  many  respects  to  the  English  act,  much  considera- 
tion will  be  given  to  decisions  by  English  Courts  in  com- 
pensation cases. 

Newman,  Matter  of  vs.  Newman,  169  App.  Div.  745 ; 
155  N.  Y.  Supp.  665. 

DePhillippis,  Matter  of  vs.  Faulkenberg,  170  App.  Div. 
153;  155  N.Y.  Supp.  761. 


(The  citations  of  cases  in  this  work  in  the  New  York 
Supplement  Reports  (without  opinion)  are  decisions  of 
the  Appellate  Division,  Supreme  Court,  Third  Depart- 
ment on  appeals  from  awards  under  this  section.  Where 
opinions  have  been  written  both  the  Appellate  Division 
and  the  New  York  Supplement  citations  are  given.) 


138  workmen's  compensation 

RULES  ADOPTED  BY  THE  APPELLATE  DIVI- 
SION, THIRD  DEPARTMENT,  REGULATING 
APPEALS  IN  COMPENSATION  CASES. 

Rule  1.  *  *  *  Appeals  in  compensation  cases  shall  be 
put  upon  the  compensation  appeals  calendar  immediately 
following  the  non-enumerated  calendar.  The  argument  of 
*  *  *  such  *  *  *  cases  will  be  heard  only  upon  the  first 
day  of  a  term  and  the  days  immediately  following,  until 
they  shall  all  be  disposed  of,  before  the  general  calendar 
shall  be  taken  up.  But  submission  of  such  appeals  will 
be  received  on  any  day  during  the  term.  Appeals  from 
orders  and  compensation  appeals  which  are  not  upon  the 
calendar  when  printed,  may,  after  papers  have  been  filed 
and  served  in  compliance  with  General  Rule  No.  41,  be 
added  thereto  upon  filing  a  note  of  issue  with  the  clerk 
five  days  before  argument,  and  be  noticed  for  argument 
for  any  Tuesday  of  the  term  upon  the  usual  notice  of 
eight  days.    (Adopted  January  18,  1916.) 

The  argument  of  a  case  on  the  general  calendar  will  not 
be  required  in  any  case  before  Wednesday  of  the  first  week. 


Appeals  from  the  Appellate  Division  are  heard  in  the 
Court  of  Appeals  under  Rule  11  of  the  Rules  of  the 
Court  of  Appeals  relating  to  appeals  from  orders. 

Exception  to  decisions  of  the  Commissions  are  not  nec- 
essary for  the  purpose  of  reviewing  questions  on  appeal. 
Kenny,  Matter  of  vs.   Union  Railway  Co.,  166  App. 
Div.  497;  152  N.  Y.  Supp.  117. 

§  24.  Costs  and  fees.  If  the  commission  or  the  court 
before  which  any  proceedings  for  compensation  or  concern- 
ing an  award  of  compensation  have  been  brought,  under 
this  chapter,  determines  that  such  proceedings  have  not 
been  so  brought  upon  reasonable  ground,  it  shall  assess  the 
whole  cost  of  the  proceeding  upon  the  party  who  has  so 
brought  them.  Claims  for  legal  services  in  connection  with 
any  claim  arising  under  this  chapter,  and  claims  for  serv- 
ices or  treatment  rendered  or  supplies  furnished  pursu- 
ant to  section  thirteen  of  this  chapter,  shall  not  be  en- 
forceable unless  approved  by  the  commission.  If  so  ap- 
proved, such  claim  or  claims  shall  become  a  lien  upon  the 
compensation  awarded,  but  shall  be  paid  therefrom  only 
in  the  manner  fixed  by  the  commission. 


PAYMENT   OF    COMPENSATION  139 

§  25.  Compensation,  how  payable.  Compensation  un- 
der the  provisions  of  this  chapter  shall  be  payable  periodi- 
cally by  the  employer,  in  accordance  with  the  method  of 
payment  of  the  wages  of  the  employee  at  the  time  of  his 
injury  or  death,  and  shall  be  so  provided  for  in  any  award ; 
but  the  commission  may  determine  that  any  payments  may 
be  made  monthly  or  at  any  other  period,  as  it  may  deem 
advisable.  The  state  or  insurance  corporation  in  which 
an  employer  is  insured  shall,  within  ten  days  after  demand 
by  such  employer  and  on  the  presentation  of  evidence  of 
payment  of  compensation  in  accordance  with  this  chap- 
ter, reimburse  the  employer  therefor.  An  injured  em- 
ployee, or  in  case  of  death  his  dependents  or  personal 
representative,  shall  give  receipts  for  payment  of  com- 
pensation to  the  employer  paying  the  same  and  such  em- 
ployer shall  forward  receipts  therefor  promptly  to  the 
commission.  The  commission,  whenever  it  shall  so  deem 
advisable,  may  commute  such  periodical  payments  to  one 
or  more  lump  sum  payments  to  the  injured  employee  or, 
in  case  of  death,  his  dependents,  provided  the  same  shall 
be  in  the  interest  of  justice.  (As  am'd  by  L.  1915,  Ch. 
167.) 

§  26.  Enforcement  of  payment  in  default.  If  payment 
of  compensation,  or  an  instalment  thereof,  due  under  the 
terms  of  an  award,  be  not  made  by  the  employer  within 
ten  days  after  the  same  is  due,  the  insurance  carrier  shall 
be  liable  therefor  and  if  not  paid  within  ten  days  after 
demand  by  the  injured  employee  or  in  case  of  death  his 
dependents  or  by  the  commission,  the  amount  of  such 
payment  shall  constitute  a  liquidated  claim  for  damages 
against  the  employer,  self-insurer  or  insurance  corpora- 
tion, which  with  an  added  penalty  of  fifty  per  centum  may 
be  recovered  in  an  action  to  be  instituted  by  the  commis- 
sion in  the  name  of  the  people  of  the  state.  An  employer 
who  negligently  or  intentionally  defaults  in  payment  of 
compensation  in  the  first  instance  under  this  chapter  shall 
be  liable  to  a  penalty  of  not  more  than  ten  per  centum  of 
the  amount  of  such  compensation,  notwithstanding  the  fact 
that  the  insurance  corporation  or  state  fund  subsequently 
pays  the  compensation  as  provided  in  this  section.  If  such 
default  be  made  in  the  payment  of  an  instalment  of  com- 
pensation and  the  whole  amount  of  such  compensation  be 
not  due,  the  commission  may,  if  the  present  value  of  such 
compensation  be   computable,   declare  the  whole  amount 


14<0  workmen's  compensation 

thereof  due,  and  recover  the  amount  thereof  with  the  added 
penalties,  as  provided  by  this  section.  Any  such  action 
may  be  compromised  by  the  commission  or  may  be  prose- 
cuted to  final  judgment  as,  in  the  discretion  of  the  com- 
mission, may  best  serve  the  interests  of  the  persons  en- 
titled to  receive  the  compensation  or  the  benefits.  Com- 
pensation recovered  under  this  section  shall  be  disbursed 
by  the  commission  to  the  persons  entitled  thereto  in  ac- 
cordance with  the  award.  A  penalty  recovered  pursuant 
to  this  section  shall  be  paid  into  the  state  treasury,  and 
be  applicable  to  the  expenses  of  the  commission. 

In  case  of  default  by  the  employer  in  the  payment  of  any 
compensation  due  under  an  award  for  the  period  of  thirty 
days  after  payment  is  due  and  payable,  any  party  in  in- 
terest may  file  with  the  county  clerk  for  the  county  in 
which  the  injury  occurred,  a  certified  copy  of  a  decision 
of  the  state  industrial  commission  awarding  compensation, 
or  ending,  diminishing  or  increasing  compensation  previ- 
ously awarded,  from  which  no  appeal  has  been  taken  with- 
in the  time  allowed  therefor,  and  thereupon  judgment  must 
be  entered  in  the  supreme  court  by  the  clerk  of  such  county 
in  conformity  therewith  immediately  upon  the  filing  of 
such  decision.  Such  decree  or  judgment  shall  be  entered 
in  the  same  manner  and  shall  have  the  same  effect  and  all 
proceedings  in  relation  thereto  shall  thereafter  be  the 
same,  as  though  said  decree  or  judgment  had  been  ren- 
dered in  a  suit  duly  heard  and  determined  by  the  supreme 
court,  except  that  there  shall  be  no  appeal  therefrom. 
The  court  upon  the  filing  with  it  of  a  certified  copy  of  a 
decision  of  the  state  industrial  commission  ending,  dimin- 
ishing or  increasing  compensation  previously  awarded, 
shall  revoke  or  modify  its  prior  decree  or  judgment  so  that 
it  will  conform  to  said  decision.  Neither  the  commission 
nor  any  party  in  interest  shall  be  required  to  pay  any 
fee  to  any  public  officer  for  filing  or  recording  any  paper 
or  instrument  executed  in  pursuance  of  this  section.  (Sec. 
26,  am'd  by  L.  1916,  Ch.  622,  effective  June  1,  1916,  and 
as  amended  by  L.  1915,  Ch.  167.) 

§  27.  Depositing  future  payments.  If  an  award  under 
this  chapter  requires  payment  of  compensation  by  an  em- 
ployer or  an  insurance  corporation  in  periodical  payments, 
and  the  nature  of  the  injury  makes  it  possible  to  compute 
the  present  value  of  all  future  payments  with  due  regard 
for  life  contingencies,  the  commission  may,  in  its  discretion, 


MMITATION   OF   EIGHT  TO   COMPENSATION  141 

at  any  time,  compute  and  permit  or  require  to  be  paid 
into  the  state  fund  an  amount  equal  to  the  present  value 
of  all  unpaid  compensation  for  which  liability  exists,  to- 
gether with  such  additional  sum  as  the  commission  may 
deem  necessary  for  a  proportionate  payment  of  expenses 
of  administering  the  fund  so  created,  such  moneys  to  con- 
stitute an  aggregate  trust  fund;  and  thereupon  such  em- 
ployer or  insurance  corporation  shall  be  discharged  from 
any  further  liability  under  such  award  and  payment  of 
the  same  shall  be  assumed  by  the  trust  fund  so  created. 

The  moneys  so  paid  into  this  fund  shall  constitute  an 
aggregate  trust  fund  and  shall  be  kept  separate  and  apart 
from  all  other  moneys  of  the  state  fund,  and  shall  not  be 
liable  for  any  expenses  of  administration  of  the  state  fund 
other  than  the  expenses  involved  in  the  administration  of 
such  trust  fund.  (As  amended  by  L.  1916,  Ch.  622,  ef- 
fective June  1,  1916.) 

§  28.  Limitation  of  right  to  compensation.  The  right 
to  claim  compensation  under  this  chapter  shall  be  forever 
barred  unless  within  one  year  after  the  injury  or  if  death 
result  therefrom,  within  one  year  after  such  death,  a  claim 
for  compensation  thereunder  shall  be  filed  with  the  commis- 
sion. 

§  29.  Subrogation  to  remedies  of  employees.  If  an  em- 
ployee entitled  to  compensation  under  this  chapter  be  in- 
jured or  killed  by  the  negligence  or  wrong  of  another  not 
in  the  same  employ,  such  injured  employee,  or  in  case  of 
death,  his  dependents,  shall,  before  any  suit  or  claim  un- 
der this  chapter,  elect  whether  to  take  compensation  un- 
der this  chapter  or  to  pursue  his  remedy  against  such 
other.  Such  election  shall  be  evidenced  in  such  manner  as 
the  commission  may  by  rule  or  regulation  prescribe.  If  he 
elect  to  take  compensation  under  this  chapter,  the  cause 
of  action  against  such  other  shall  be  assigned  to  the  state 
for  the  benefit  of  the  state  insurance  fund,  if  compensa- 
tion be  payable  therefrom,  and  otherwise  to  the  person, 
association,  corporation,  or  insurance  carrier  liable  for 
the  payment  of  such  compensation,  and  if  he  elect  to  pro- 
ceed against  such  other,  the  state  insurance  fund,  person, 
association,  corporation,  or  insurance  carrier,  as  the  case 
may  be,  shall  contribute  only  the  deficiency,  if  any,  be- 
tween the  amount  of  the  recovery  against  such  other  per- 
son actually  collected,  and  the  compensation  provided  or 
estimated  by  this  chapter  for  such  case.     Such  a  cause 


142  woekmen's  compensation 

of  action  assigned  to  the  state  may  be  prosecuted  or  com- 
promised by  the  commission.  A  compromise  of  any  such 
cause  of  action  by  the  employee  or  his  dependents  at  an 
amount  less  than  the  compensation  provided  for  by  this 
chapter  shall  be  made  only  with  the  written  approval  of 
the  commission,  if  the  deficiency  of  compensation  would 
be  payable  from  the  state  insurance  fund,  and  otherwise 
with  the  written  approval  of  the  person,  association,  cor- 
poration, or  insurance  carrier  liable  to  pay  the  same. 
Wherever  an  employee  is  killed  by  the  negligence  or  wrong 
of  another  not  in  the  same  employ  and  the  dependents  of 
such  employee  entitled  to  compensation  under  this  chap- 
ter are  minors,  such  election  to  take  compensation  and  the 
assignment  of  the  cause  of  action  against  such  other  and 
such  notice  of  election  to  pursue  a  remedy  against  such 
other  shall  be  made  by  such  minor,  or  shall  be  made  on  be- 
half of  such  minor  by  a  parent  of  such  minor,  or  by  his 
or  her  duly  appointed  guardian,  as  the  commission  may 
determine  by  rule  in  each  case.  (Sec.  29,  am'd  by  L.  1916, 
Ch.  622,  effective  June  1,  1916.) 
An  employee  entitled  to  compensation  under  the 
workmen's  compensation  act  may  recover  an  award  not- 
withstanding he  has  executed  a  release  to  another  not 
in  the  same  employ,  through  whose  instrumentality  the 
accident  occurred. 

An  insurer  in  such  case  would  be  liable  only  for  the 
difference  between  any  amount  received  in  consideration 
of  the  release  and  the  compensation  provided  by  the  act. 
The  release  in  such  case  constitutes  no  obstacle  in  the 
way  of  the  insurer  prosecuting  the  assigned  claim  of  the 
injured  employee  against  the  third  party. 

Woodward,  Matter  of  vs.  E.  W.  Conklin  <§•  Sons,  Inc., 
App.  Div.,  Third  Dept.,  March  8,  1916.  Opinions  by 
Cochrane  and  Woodward,  JJ.   (157  N.  Y.  Supp,  948.) 

The  injured  workman  may  sue  a  third  party  for  dam- 
ages at  common  law  without  complying  with  the  pro- 
visions of  this  section. 

Lester  vs.  Otis  Elevator  Company,  153  N.  Y.  Supp. 
1058;  169  App.  Div.  613. 

In  a  suit  brought  by  an  employer  or  insurance  carrier 
upon  the  assigned  claim  of  an  injured  workman,  the  re- 


SUITS  AGAINST  THIRD   PARTIES  143 

covery  is  limited  to  the  amount  of  compensation  paid  by 
the  plaintiff. 

U.  S.  Fidelity  4*  Guaranty  Co.  vs.  New  York  Railways 
Co.,  156  N.  Y.  Supp.  615. 

It  seems  that  where  the  injured  workman  is  under  21 
years  of  age  such  workman  may  sue  or  may  elect  to  take 
compensation  under  this  section  without  the  appointment 
of  a  guardian  Ad  Litem. 

Herkey,  Matter  of  vs.  Agar  Mfg.  Co.,  153  N.  Y.  Supp. 
369 ;  90  Misc.  457. 

In  Death  File  No.  9,  James  J.  CaMll,  deceased,  vs. 
Terry  8^  Trench  Co.,  where  the  widow  elected  to  sue  a 
third  party  for  damages  and  the  mother  elected  to  take 
compensation,  the  Commission  has  certified  to  the  Ap- 
pellate Division  the  question  as  to  whether  the  mother 
is  entitled  to  compensation. 

Where  a  claim  for  compensation  was  filed  and  an 
award  made  to  the  dependents,  permission  to  withdraw 
the  claim  in  order  that  suit  might  be  instituted  against 
a  third  party  was  denied. 

Claim  No.  52472,  Peter  Biovanni,  deceased,  vs.  New 
England  S.  S.  Co.,  State  Industrial  Commission. 

Although  the  employer  has  secured  the  payment  of 
compensation  for  injured  employees  and  their  depend- 
ents, an  employee  has  a  remedy  at  common  law  against 
a  master  as  a  third  party  for  an  injury  sustained  in  the 
course  of  the  employment  while  delivering  goods  at  a 
building  owned  by  the  employer  but  entirely  discon- 
nected with  the  place  of  business  where  such  injuries 
are  caused  by  the  employer's  negligence. 

Winter  vs.  Peter  Doelger  Brewing  Co., Misc. ; 

N.  Y.  Supp. ,  (Sup.  Ct.  App.  Term,  May,  1916). 


Where  a  widow  as  administratrix  brought  suit  against 
a  third  party  resulting  in  a  disagreement  by  the  jury, 
compensation  was  denied  against  the  employer  and  in- 
surance carrier  until  the  suit  should  be  finally  deter- 
mined. 

Claim  No.  34155,  Govan  Easter,  deceased.  Matter  of  vs. 
Washington  Heights  Van  Co.,  Workmen's  Compensation 
Com.,  May  3,  1915. 


144  workmen's  compensation 

Where  the  injured  workman  has  received  an  award  of 
compensation,  he  cannot  subsequently  sue  a  third  party, 
through  whose  negligence  the  injury  happened. 

Miller  vs.  New  York  Railways  Company,  171  App.  Div. 
316;  157  N.  Y.  Supp.  200. 

(See  also  Part  I,  Sec.  24.) 

§  30.  Revenues  or  benefits  from  other  sources  not  to 
affect  compensation.  No  benefits,  savings  or  insurance  of 
the  injured  employee,  independent  of  the  provisions  of  this 
chapter,  shall  be  considered  in  determining  the  compensa- 
tion or  benefits  to  be  paid  under  this  chapter,  except  that, 
in  case  of  the  death  of  an  employee  of  the  state,  a  munici- 
pal corporation  or  any  other  political  subdivision  of  the 
state,  any  benefit  payable  under  a  pension  system  which 
is  not  sustained  in  whole  or  in  part  by  the  contributions  of 
the  employee,  may  be  applied  toward  the  payment  of  the 
death  benefit  provided  by  this  chapter.  (Section  30  am'd 
byL.  1914,  Ch.  316.) 

§  31.  Agreement  for  contribution  by  employee  void. 
No  agreement  by  an  employee  to  pay  any  portion  of  the 
premium  paid  by  his  employer  to  the  state  insurance  fund 
or  to  contribute  to  a  benefit  fund  or  department  maintained 
by  such  employer  or  to  the  cost  of  mutual  insurance  or 
other  insurance,  maintained  for  or  carried  for  the  purpose 
of  providing  compensation  as  herein  required,  shall  be 
valid,  and  any  employer  who  makes  a  deduction  for  such 
purpose  from  the  wages  or  salary  of  any  employee  entitled 
to  the  benefits  of  this  chapter  shall  be  guilty  of  a  mis- 
demeanor. 

§  32.     Waiver  agreements  void.      No  agreement  by  an 
employee  to  waive  his  right  to  compensation  under  this 
chapter  shall  be  valid. 
( See  Cunningham,  Matter  of  vs.  Buffalo  C.  8^  B.  Roll- 
ing Mills, App.  Div. ;  155  N.  Y.  Supp.  797, 

where  the  Commission  made  an  award  for  244  weeks  for 
the  loss  of  a  hand  and  disregarded  a  subsequent  agree- 
ment signed  by  the  claimant  to  accept  a  lump  sum  based 
upon  compensation  for  116  weeks  for  the  loss  of  four 
fingers. 

§  33.  Assignment ;  exemptions.  Claims  for  compen- 
sation or  benefits  due  under  this  chapter  shall  not  be  as- 
signed, released  or  commuted  except  as  provided  by  this 


SECURITY  FOR  COMPENSATION  145 

chapter,  and  shall  be  exempt  from  all  claims  of  creditors 

and  from  lev}'^,  execution  and  attachment  or  other  remedy 

for  recovery  or  collection  of  a  debt,  which  exemption  may 

not  be  waived.     Compensation  and  benefits  shall  be  paid 

only  to  employees  or  their  dependents. 

For  a  discussion  of  this  section  in  connection  with  the 

settlement  of  a  suit  against  a  third  party  under  Section 

29,  see 

Woodward,  Matter  of  vs.  E.  W.  Conklin  Sc  Sons,  Inc., 
App.  Div.,  Third  Dept.,  March  8,  1916;  (157  N.  Y.  Supp. 
948.) 

(See  also,  Bloom  vs.  Jaffee,  157  N.  Y.  Supp.  926;  94 
Misc.  222.) 

§  34.  Preferences.  The  right  of  compensation  granted 
by  this  chapter  and  any  awards  made  thereunder  shall 
have  the  same  preference  or  lien  without  limit  of  amount 
against  the  assets  of  the  employer  as  is  now  or  hereafter 
may  be  allowed  by  law  for  a  claim  for  unpaid  wages  for 
labor.     (As  amended  by  L.  1916,  Ch.  622,  eifective  June  1, 


1916.) 


ARTICLE  3. 

Security  for  Compensation. 


Section  50.  Security  for  payment  of  compensation. 

51.  Posting  of  notice  regarding  compensation. 

52.  Effect  of  failure  to  secure  compensation. 

53.  Release  from  all  liability. 

54.  The  insurance  contract. 

§  50.  Security  for  payment  of  compensation.  An  em- 
ployer shall  secure  compensation  to  his  employees  in  one 
of  the  following  ways : 

1.  By  insuring  and  keeping  insured  the  payment  of 
such  compensation  in  the  state  fund,  or 

2.  By  insuring  and  keeping  insured  the  payment  of 
such  compensation  with  any  stock  corporation  or  mutual 
association  authorized  to  transact  the  business  of  work- 
men's compensation  insurance  in  this  state.  If  insurance 
be  so  effected  in  such  a  corporation  or  mutual  association 
the  employer  shall  forthwith  file  with  the  commission,  in 
form  prescribed  by  it,  a  notice  specifying  the  name  of  such 
insurance  corporation  or  mutual  association  and  such  in- 
formation regarding  the  policies  as  the  commission  may 


146  workmen's  compensation 

require.     (Subd.  2,  am'd  by  L.  1916,  Ch.  622,  effective 
June  1,  1916.) 

3.  By  furnishing  satisfactory  proof  to  the  commis- 
sion of  his  financial  ability  to  pay  such  compensation  for 
himself,  in  which  case  the  commission  may,  in  its  discre- 
tion, require  the  deposit  with  the  commission  of  securities 
of  the  kind  prescribed  in  section  thirteen  of  the  insurance 
law,  in  an  amount  to  be  determined  by  the  commission,  to 
secure  his  liability  to  pay  the  compensation  provided  in 
this  chapter.  The  commission  shall  have  the  authority  to 
revoke  its  consent  furnished  under  this  section  at  any  time 
for  good  cause  shown.  (Subd.  3  am'd  by  L.  1916,  Ch. 
622,  effective  June  1,  1916.) 

If  an  employer  fail  to  comply  with  this  section,  he  shall 
be  liable  to  a  penalty  during  which  such  failure  continues 
of  an  amount  equal  to  the  pro  rata  premium  which  would 
have  been  pa3'able  for  insurance  in  the  state  filnd  for  such 
period  for  noncompliance  to  be  recovered  in  an  action 
brought  by  the  commission. 

The  commission  may,  in  its  discretion,  for  good  cause 
shown,  remit  any  such  penalty,  provided  the  employer  in 
default  secure  compensation  as  provided  in  this  section. 
(Am'd  by  L.  1914,  Ch.  316.) 
All  employees  and  employers  must  be  treated  alike  to 
matter  what  method  may  be  observed  for  giving  secur- 
ity for  the  payment  of  compensation. 

McQueeney,  Matter  of  vs.  Sutphen  <§•  Meyer,  167  App. 
Div.  528;  153  N.  Y.  Supp.  554. 

Post,  Matter  of  vs.  Burger  <§•  Gohlke,  168  App.  Div. 
403;  153  N.  Y.  Supp.  505. 

§  51.  Posting  of  notice  regarding  compensation.  Every 
employer  who  has  complied  with  section  fifty  of  this 
chapter  shall  post  and  maintain  in  a  conspicuous  place  or 
places  in  and  about  his  place  or  places  of  business  type- 
written or  printed  notices  in  form  prescribed  by  the  com- 
mission, stating  the  fact  that  he  has  complied  with  all 
the  rules  and  regulations  of  the  commission  and  that  he 
has  secured  the  payment  of  compensation  to  his  employ- 
ees and  their  dependents  in  accordance  with  the  provisions 
of  this  chapter. 

§  52.  Effect  of  failure  to  secure  compensation.  Fail- 
ure to  secure  the  payment  of  compensation  shall  constitute 
a  misdemeanor  and  have  the  effect  of  enabling  the  injured 


RELEASE  FROM  LIABILITY  147 

employee,  or  in  case  of  death,  his  dependents  or  legal  rep- 
resentatives, to  maintain  an  action  for  damages  in  the 
courts,  as  prescribed  by  section  eleven  of  this  chapter. 
(Sec.  52,  am'd  by  L.  1916,  Ch.  622,  effective  June  1, 
1916.) 

§  53.  Release  from  all  liability.  An  employer  securing 
the  payment  of  compensation  by  contributing  premiums  to 
the  state  fund  shall  thereby  become  relieved  from  all  liabil- 
ity for  personal  injuries  or  death  sustained  by  his  employ- 
ees, and  the  persons  entitled  to  compensation  under  this 
chapter  shall  have  recourse  therefor  only  to  the  state  fund 
and  not  to  the  employer.  An  employer  shall  not  other- 
wise be  relieved  from  the  liability  for  compensation  pre- 
scribed by  this  chapter  except  by  the  payment  thereof  by 
himself  or  his  insurance  carrier. 
This  section  only  releases  from  the  liability  to  pay 
compensation.    ( See  Part  2,  Section  30. ) 

Employers  who  carry  their  own  insurance  or  who  in- 
sure with  a  stock  or  mutual  company,  upon  payment  of 
compensation,  obtain  the  same  release  from  liability  as 
employers  who  insure  in  the  State  Fund. 

Post,  Matter  of  vs.  Burger  <§•  GohlJce,  216  N.  Y.  544. 
Michael  Connors  vs.  Semet-Solvay  Company,  Sup.  Ct., 
Sp.  Term,  March  22,  1916  (not  yet  reported). 

§  54.  The  insurance  contract.  1.  Right  of  recourse 
to  the  insurance  carrier.  Every  policy  of  insurance  cover- 
ing the  liability  of  the  employer  for  compensation  issued 
by  a  stock  company  or  by  a  mutual  association  author- 
ized to  transact  workmen's  compensation  insurance  in  this 
state  shall  contain  a  provision  setting  forth  the  right  of 
the  commission  to  enforce  in  the  name  of  the  people  of 
the  state  of  New  York  for  the  benefit  of  the  person  entitled 
to  the  compensation  insured  by  the  policy  either  by  filing 
a  separate  application  or  by  making  the  insurance  carrier 
a  party  to  the  original  application,  the  liability  of  the  in- 
surance carrier  in  whole  or  in  part  for  the  payment  of 
such  compensation ;  provided,  however,  that  payment  in 
whole  or  in  part  of  such  compensation  by  either  the  em- 
ployer or  the  insurance  carrier  shall  to  the  extent  thereof 
be  a  bar  to  the  recovery  against  the  other  of  the  amount 
so  paid. 


148  wokkmen's  compensation 

2.  Knowledge  and  jurisdiction  of  the  employer  ex- 
tended to  cover  the  insurance  carrier.  Every  such  policy 
shall  contain  a  provision  that,  as  between  the  employee 
and  the  insurance  carrier,  the  notice  to  or  knowledge  of  the 
occurrence  of  the  injury  on  the  part  of  the  employer  shall 
be  deemed  notice  or  knowledge,  as  the  case  may  be,  on  the 
part  of  the  insurance  carrier ;  that  jurisdiction  of  the  em- 
ployer shall,  for  the  purpose  of  this  chapter,  be  jurisdic- 
tion of  the  insurance  carrier  and  that  the  insurance  car- 
rier shall  in  all  things  be  bound  by  and  subject  to  the  or- 
ders, findings,  decisions  or  awards  rendered  against  the  em- 
ployer for  the  payment  of  compensation  under  the  pro- 
visions of  this  chapter. 

3.  Insolvency  of  employer  does  not  release  the  insur- 
ance carrier.  Every  such  policy  shall  contain  a  provision 
to  the  effect  that  the  insolvency  or  bankruptcy  of  the  em- 
ployer shall  not  relieve  the  insurance  carrier  from  the  pay- 
ment of  compensation  for  injuries  or  death  sustained  by  an 
employee  during  the  life  of  such  policy. 

4.  Limitation  of  indemnity  agreements.  Every  con- 
tract or  agreement  of  an  employer  the  purpose  of  which 
is  to  indemnify  him  from  loss  or  damage  on  account  of  the 
injury  of  an  employee  by  accidental  means,  or  on  account 
of  the  negligence  of  such  employer  or  his  officer, 
agent  or  servant,  shall  be  absolutely  void  unless  it  shall 
also  cover  liability  for  the  payment  of  the  compensation 
provided  for  by  this  chapter. 

5.  Cancellation  of  insurance  contracts.  No  contract 
of  insurance  issued  by  an  insurance  carrier  against  liabil- 
ity arising  under  this  chapter  shall  be  cancelled  within  the 
time  limited  in  such  contract  for  its  expiration  until  at 
least  ten  days  after  a  notice  of  cancellation  of  such  con- 
tract, on  a  date  specified  in  such  notice,  shall  be  filed  in  the 
office  of  the  commission  and  also  served  on  the  employer. 
Such  notice  shall  be  served  on  the  employer  by  delivering  it 
to  him  or  by  sending  it  by  mail,  by  registered  letter,  ad- 
dressed to  the  employer  at  his  or  its  last  known  place  of 
residence ;  provided  that,  if  the  employer  be  a  partnership, 
then  such  notice  may  be  so  given  to  any  one  of  the  part- 
ners, and  if  the  employer  be  a  corporation  then  the  notice 
may  be  given  to  any  agent  or  officer  of  the  corporation 
upon  whom  legal  process  may  be  served.  Provided,  how- 
ever, the  right  to  cancellation  of  a  policy  of  insurance  in 
the  state  fund  shall  be  exercised  only  for  non-payment  of 


THE   INSURANCE   CONTRACT  149 

premiums.     (Subd.  5,  am'd  by  L.  1916,  Ch.  622,  effective 
June  1,  1916.) 

6.     Any  insurance  carrier  may  issue  policies,  includ- 
ing with  employees,  employers  who  perform  labor  inci- 
dental to  their  occupations,  such  policies  insuring  to  such 
employers  the  same  compensations  provided  for  their  em- 
ployees, and  at  the  same  rates ;  provided,  however,  that  the 
estimation  of  their  wage  values,  respectively,  shall  be  rea- 
sonable and  separately  stated  in  and  added  to  the  valua- 
tion of  their  pay  rolls  upon  which  their  premium  is  com- 
puted.   The  employer  so  insured  shall  have  the  same  rights 
and  remedies  given  an  employee  by  this  chapter.    (  Subd.  6, 
added  by  L.  1916,  Ch.  622,  effective  June  1,  1916.) 
In  a  proceeding  before  the  Commission  where  a  claim 
for  compensation  is  made  against  the  employer  and  in- 
surance carrier,  the  Commission  has  jurisdiction  to  de- 
termine whether  the  insurance  policy  was  in  force  at  the 
time  of  the  accident. 

Bloom,  Matter  of  vs.  Tillen  Sf  Bleek,  The  Bulletin,  Vol. 
1,  No.  2,  page  12. 

File  No.  5091,  Miner,  Matter  of  vs.  Turnhull,  The  Bul- 
letin, Vol.  1,  No.  6,  page  21. 

For  cases  in  which  the  Commission  determined  that 
the  insurance  policy  had  not  been  properly  cancelled,  see 
McCaffrey,  Matter  of  vs.  Tager  Contracting  Co.,  The 
Bulletin,  Vol.  1,  No.  2,  page  11. 

File  No.  5091,  Miner,  Matter  of  vs.  Turnhidl,  The  Bul- 
letin, Vol.  1,  No.  6,  page  21. 

For  a  case  in  which  the  Commission  determined  that 
the  policy  had  been  properly  cancelled  and  was  not  in 
force  at  the  time  of  the  accident,  see 

Bloom,  Matter  of  vs.  Tillen  ^  Bleek,  above. 

The  insurance  company  can  succeed  in  escaping  liabil- 
ity under  a  policy  that  has  been  issued  only  by  proof  that 
the  statutory  method  of  cancellation  was  literally  fol- 
lowed, or  that  the  notice  was  in  fact  received  by  the  in- 
sured. 

File  No.  5091,  Miner,  Matter  of  vs.  Turnbnll,  above. 

See  also  Death  File  No.  523,  Stanilaw  Shoczylois,  de- 
ceased, vs.  Phillip  Vinocour,  The  Bulletin,  Vol.  1,  No.  6, 
page  14. 


150  workmen's  compensation 

ARTICLE  4. 
State  Workmen's  Compensation  Commission. 

Section  60.  State  workmen's  compensation  commission. 

61.  Secretary,  deputies  and  other  employees. 

62.  Salaries  and  expenses. 

63.  Office. 

64.  Sessions  of  commission. 

65.  Powers    of    individual    commissioners    and 

deputy  commissioners. 

66.  Powers  and  duties  of  secretary. 

67.  Rules. 

68.  Technical  rules  of  evidence  or  procedure  not 

required. 

69.  Issue   of  subpoena;  penalty   for   failure   to 

obey. 

70.  Recalcitrant  witnesses  punishable  as  for  con- 

tempt. 

71.  Fees  and  mileage  of  witness. 

72.  Depositions. 

73.  Transcript  of  stenographer's  minutes ;  effect 

as  evidence. 

74.  Jurisdiction  of  commission  to  be  continuing. 

75.  Report  of  commission. 

76.  Commission  to  furnish  blank  forms. 

77.  Expenses  of  administering  commission. 

(Sections  60  of  the  Workmen's  Compensation  Law 
which  created  the  State  Workmen's  Compensation  Com- 
mission, and  61,  authorizing^  the  appointment  of  secre- 
taries, deputies  and  other  employees  were  repealed  by 
Chapter  674  of  the  Laws  of  1915,  and  the  functions  of 
the  State  Workmen's  Compensation  Commission  were 
transferred  to  the  State  Industrial  Commission.  In 
place  of  Sections  60  and  61  of  the  Workmen's  Compen- 
sation Law  there  is  inserted  Section  40  of  the  Labor 
Law,  being  Chapter  36  of  the  Laws  of  1909  as  amend- 
ed, constituting  Chapter  31  of  the  Consolidated  Laws, 
and  Sections  4,  6  and  7  of  Chapter  674  of  the  Laws  of 
1915.  The  State  Industrial  Commission  superseded  the 
Workmen's  Compensation  Commission  on  June  1, 
1915.) 


THE   STATE   INDUSTRIAL   COMMISSION  151 

§  40.  (The  Labor  Law)  Industrial  commission  created. 
There  shall  be  a  department  of  labor,  the  head  of  which 
shall  be  the  Industrial  commission.  The  commission  shall 
consist  of  five  commissioners  appointed  by  the  governor 
by  and  with  the  advice  and  consent  of  the  senate,  one  of 
whom  shall  be  designated  by  the  governor  as  chairman. 
Upon  the  appointment  of  a  successor  to  the  chairman  the 
governor  shall  designate  such  successor  or  any  member  of 
the  commission  as  chairman  thereof.  The  term  of  office 
of  each  commissioner  shall  be  six  years,  except  that  the 
term  of  the  commissioners  first  appointed  shall  expire,  one 
on  January  first,  nineteen  hundred  and  seventeen,  one  on 
January  first,  nineteen  hundred  and  eighteen,  one  on  Janu- 
ary first,  nineteen  hundred  and  nineteen,  one  on  January 
first,  nineteen  hundred  and  twenty  and  one  on  January 
first,  nineteen  hundred  and  twenty-one.  Their  successors 
shall  be  appointed  for  full  terms  of  six  years  from  the 
expiration  of  the  terms  of  their  predecessors  in  office.  If 
a  vacancy  occurs  otherwise  than  by  expiration  of  a  term,  it 
shall  be  filled  by  appointment  for  the  unexpired  term.  Each 
commissioner  shall  receive  an  annual  salary  of  eight  thou- 
sand dollars,  and  shall  devote  his  entire  time  to  the  duties 
of  his  office.  Not  more  than  three  commissioners  shall  be 
members  of  the  same  political  party. 

The  governor  may  remove  a  commissioner  for  ineffi- 
ciency, neglect  of  duty  or  misconduct  in  office,  giving  him  a 
copy  of  the  charges  and  an  opportunity  of  being  publicly 
heard  in  person  or  by  counsel  on  not  less  than  ten  days' 
notice.  If  the  commissioner  be  removed,  the  governor  shall 
file  in  the  office  of  the  secretary  of  state  a  complete  record 
of  his  proceedings  with  regard  to  such  removal  and  his 
findings  thereon. 

The  commission  may  adopt  a  seal  and  require  that  it  be 
used  for  the  authentication  of  the  commission's  orders  and 
proceedings  and  for  such  other  purposes  as  the  commis- 
sion may  prescribe.  The  court  shall  take  judicial  notice  of 
such  seal  and  of  the  signatures  of  the  chairman  and  secre- 
tary of  the  commission.  (As  am'd  by  L.  1911,  Ch.  729; 
L.  1913,  Ch.  145 ;  and  L.  1915,  Ch.  674.) 

§4.  (Chapter  674,  Laws  of  1915)  Workmen's  Com- 
pensation Commission  abolished.  The  State  Workmen's 
Compensation  Commission  created  as  provided  in  Sec.  60 
of  the  Workmen's  Compensation  Law  is  hereby  abolished, 
and  the  terms  of  office  of  the  members  of  such  commission 


152  workmen's  compensation 

then  in  office  shall  cease  on  the  appointment  and  qualifica- 
tions of  the  member  of  the  Industrial  Commission.  All  the 
powers,  duties,  obligations  and  liabilities  conferred  or  im- 
posed by  law  upon  the  Workmen's  Compensation  Commis- 
sion by  the  Workmen's  Compensation  law  or  any  other 
statute  are  hereby  conferred  and  imposed  upon  the  State 
Industrial  Commission  and  such  Commission  may  exercise 
and  perform  such  powers  and  duties  and  shall  be  subjec- 
tion to  such  obligations  and  liabilities  in  the  same  manner, 
to  the  same  extent  and  with  the  same  force  and  effect  as 
would  have  been  the  case  had  the  Workmen's  Compensa- 
tion Commission  been  continued  in  office.  For  the  purpose 
of  exercising  such  powers,  performing  such  duties,  being 
subjected  to  such  obligations  and  liabilities,  the  State  In- 
dustrial Commission  shall  be  deemed  to  be  a  continuation 
of  such  Workmen's  Compensation  Commission..  The  offices 
of  the  secretary  to  the  Workmen's  Compensation  Commis- 
sion and  of  the  deputies  appointed  by  the  Workmen's  Com- 
pensation Commission,  are  hereby  abolished ;  and  the  pow- 
ers and  duties  of  such  officers  then  in  office  shall  cease  upon 
the  appointment  and  qualifications  of  the  members  of  the 
Industrial  Commission. 

§6.  (Chapter  674,  Laws  of  1915)  Rules  and  Regu- 
lations continued;  pending  actions  or  proceedings.  The 
rules,  regulations  and  orders  of  the  commissioner  of  labor, 
the  industrial  board,  or  the  Workmen's  Compensation  Com- 
mission in  force  when  this  act  takes  effect  enacted  or  pro- 
mulgated pursuant  to  law  are  continued  in  full  force  and 
shall  be  operative  until  modified,  superseded  or  repealed 
by  the  Industrial  Commission.  This  act  shall  not  affect 
pending  cases  or  proceedings,  civil  or  criminal,  brought 
by  or  against  the  commissioner  of  labor  or  the  Workmen's 
Compensation  Commission.  All  proceedings,  hearings,  in- 
vestigations and  other  matters  pending  before  the  commis- 
sioner of  labor,  the  industrial  board,  or  the  Workmen's 
Compensation  Commission  shall  be  continued  and  brought 
to  a  final  determination  before  the  Industrial  Commission 
in  the  same  manner  as  though  the  commissioner  of  labor, 
the  industrial  board  and  the  Workmen's  Compensation 
Commission  had  been  continued  in  office.  Any  award  or 
determination  made  by  the  Workmen's  Compensation  Com- 
mission prior  to  the  taking  effect  of  this  act  shall  have 
the  same  force  and  effect  as  though  the  Workmen's  Com- 
pensation Commission  had  been  continued  in  office. 


THE   STATE   INDUSTRIAL   COMMISSION  153 

§7.  (Chapter  674,  Laws  of  1915)  Construction. 
Whenever  the  term  "department  of  labor,"  "commissioner 
of  labor,"  "industrial  board,"  or  Compensation  Commis- 
sion" occurs  in  any  law  or  in  any  rule  or  regulation  made 
in  pursuance  of  law,  or  whenever  in  any  law  reference  is 
made  to  such  department,  commissioner  or  board,  commis- 
sion or  officer,  such  terms  or  reference  shall  be  deemed  to 
mean  the  Industrial  Commission  as  established  by  this  act. 

§  62.  Expenses.  The  commission  may  make  the  neces- 
sary expenditure  to  obtain  statistical  and  other  informa- 
tion to  establish  classifications  of  employments  with  respect 
to  hazards  and  risks.  The  expenses  of  the  commission,  in- 
cluding the  premiums  to  be  paid  by  the  state  treasurer  for 
the  bond  to  be  furnished  by  him,  shall  be  paid  out  of  the 
state  treasury  upon  vouchers  signed  by  at  least  two  com- 
missioners.   (As  am'd  by  L.  1915,  Ch.  674.) 

§  63.  Office.  The  commission  shall  keep  and  maintain 
its  principal  office  in  the  city  of  Albany,  in  rooms  in  the 
capitol  assigned  by  the  trustees  of  public  buildings.  The 
office  shall  be  supplied  with  necessary  office  furniture,  sup- 
plies, books,  maps,  stationery,  telephone  connections  and 
other  necessary  appliances,  at  the  expense  of  the  state, 
payable  in  the  same  manner  as  other  expenses  of  the  com- 
mission. 

§  64.  Sessions  of  commission.  The  commission  shall  be 
in  continuous  session  and  open  for  the  transaction  of  busi- 
ness during  all  business  hours  of  every  day  excepting  Sun- 
days and  legal  holidays.  All  sessions  shall  be  open  to  the 
public  and  may  be  adjourned,  upon  entry  thereof  in  its 
records,  without  further  notice.  Whenever  convenience  of 
parties  will  be  promoted  or  delay  and  expense  prevented, 
the  commission  may  hold  sessions  in  cities  other  than  the 
city  of  Albany.  A  party  may  appear  before  such  com- 
mission and  be  heard  in  person  or  by  attorney.  Every 
vote  and  official  act  of  the  commission  shall  be  entered  of 
record,  and  the  records  shall  contain  a  record  of  each  case 
considered,  and  the  award,  decision  or  order  made  with 
respect  thereto,  and  all  voting  shall  be  by  the  calling  of 
each  commissioner's  name  by  the  secretary  and  each  vote 
shall  be  recorded  as  cast.  A  majority  of  the  commission 
shall  constitute  a  quorum.  A  vacancy  shall  not  impair 
the  right  of  the  remaining  commissioners  to  exercise  all  the 
powers  of  the  full  commission  so  long  as  a  majority  re- 
mains. 


154"  workmen's  compensation 

§  65.  Powers  of  individual  commissioners  and  deputy 
commissioners.  Any  investigation,  inquiry  or  hearing 
which  the  commission  is  authorized  to  hold  or  undertake 
may  be  held  or  taken  by  or  before  any  commissioner  or 
deputy  commissioner,  and  the  award,  decision  or  order  of 
a  commissioner  or  deputy  commissioner,  when  approved 
and  confirmed  by  the  commission  and  ordered  filed  in  its 
office,  shall  be  deemed  to  be  the  award,  decision  or  order 
of  the  commission.  Each  commissioner  and  deputy  shall, 
for  the  purposes  of  this  chapter,  have  power  to  administer 
oaths,  certify  to  official  acts,  take  depositions,  issue  sub- 
poenas, compel  the  attendance  of  witnesses  and  the  pro- 
duction of  books,  accounts,  papers,  records,  documents  and 
testimony.  The  commission  may  authorize  any  deputy  to 
conduct  any  such  investigation,  inquiry  or  hearing,  in 
which  case  he  shall  have  the  power  of  a  commissioner  in 
respect  thereof. 

§  66.  Powers  and  duties  of  secretary.  The  secretary 
of  the  commission  shall: 

1.  Maintain  a  full  and  true  record  of  all  proceedings 
of  the  commission,  of  all  documents  or  papers  ordered 
filed  by  the  commission,  of  decisions  or  orders  made  by  a 
commissioner  or  deputy  commissioner,  and  of  all  decisions 
or  orders  made  by  the  commission  or  approved  and  con- 
firmed by  it  and  ordered  filed,  and  he  shall  be  responsible  to 
the  commission  for  the  safe  custody  and  preservation  of  all 
such  documents  at  its  office ; 

2.  Have  power  to  administer  oaths  in  all  parts  of  the 
state,  so  far  as  the  exercise  of  such  power  is  properly  inci- 
dent to  the  performance  of  his  duty  or  that  of  the  com- 
mission ; 

3.  Designate,  from  time  to  time,  with  the  approval  of 
the  commission,  one  of  the  clerks  appointed  by  the  com- 
mission to  exercise  the  powers  and  duties  of  the  secretary 
during  his  absence; 

4.  Under  the  direction  of  the  commission,  have  general 
charge  of  its  office,  superintend  its  clerical  business,  and 
perform  such  other  duties  as  the  commission  may  prescribe. 

§  67.  Rules.  The  commission  shall  adopt  reasonable 
rules,  not  inconsistent  with  this  chapter,  regulating  and 
providing  for 

1.  The  kind  and  character  of  notices,  and  the  service 
thereof,  in  case  of  accident  and  injury  to  employees ; 

2.  The  nature  and  extent  of  the  proofs  and  evidence, 


THE    STATE   INDUSTRIAL    COMMISSION  155 

and  the  method  of  taking  and  furnishing  the  same,  to  es- 
tablish the  right  to  compensation ; 

3.  The  forms  of  application  for  those  claiming  to  be 
entitled  to  compensation; 

4.  The  method  of  making  investigations,  physical  ex- 
aminations and  inspections ; 

6.  The  time  within  which  adjudications  and  awards 
shall  be  made ; 

6.  The  conduct  of  hearings,  investigations  and  in- 
quiries ; 

7.  The  giving  of  undertakings  by  all  subordinates  who 
are  empowered  to  receive  and  disburse  moneys,  to  be  ap- 
proved by  the  attorney-general  as  to  form  and  by  the 
comptroller  as  to  sufficiency ; 

8.  Carrying  into  effect  the  provisions  of  this  chapter; 

9.  The  collection,  maintenance  and  disbursement  of  the 
state  insurance  fund.  (As  re-enacted  by  L.  1916,  Cr.  622, 
effective  June  1,  1916.) 

§  68.  Technical  rules  of  evidence  or  procedure  not 
required.  The  commission  or  a  commissioner  or  deputy 
commissioner  in  making  an  invsestigation  or  inquiry  or  con- 
ducting a  hearing  shall  not  be  bound  by  common  law  or 
statutory  rules  of  evidence  or  by  technical  or  formal  rules 
of  procedure,  except  as  provided  by  this  chapter;  but 
may  make  such  investigation  or  inquiry  or  conduct  such 
hearing  in  such  manner  as  to  ascertain  the  substantial 
rights  of  the  parties. 

In  the  case  of  Carroll,  Matter  of  vs.  Knickerbocker 
Ice  Co.,  169  App.  Div.  450;  155  N.  Y.  Supp.  1,  the 
Court  held  that  the  Commission  might  make  an  award  of 
compensation  based  entirely  upon  hearsay  evidence.  This 
decision  was  made  bj'^  divided  Court,  the  minority  being 
of  the  opinion  that  some  evidence  of  a  sound,  competent 
and  recognizedly  probative  character  must  be  present 
to  sustain  the  findings.  The  case  is  now  pending  in  the 
Court  of  Appeals. 

The  Commission  will  not  make  an  award  upon  hear- 
say evidence  unless  it  is  convinced  of  the  truth  of  such 
evidence. 

StadtmuUer,  Matter  of  vs.  George  Ehret,  The  Bulletin, 
Vol.  1,  No.  4,  page  9. 


156  workmen's  compensation 

(See  also  editorials  on  hearsay  evidence,  New  York 
Law  Journal,  October  11, 1915,  November  16, 1915,  and 
December  20,  1915,  and  editorial  on  sufficiency  of  evi- 
dence to  support  award,  New  York  Law  Journal,  Jan- 
uary 31,  1916.) 

§  69.  Issue  of  subpoena ;  penalty  for  failure  to  obey. 
A  subpoena  shall  be  signed  and  issued  by  a  commissioner,  a 
deputy  commissioner  or  by  the  secretary  of  the  commis- 
sion and  may  be  served  by  any  person  of  full  age  in  the 
same  manner  as  a  subpoena  issued  out  of  a  court  of  record. 
If  a  person  fail,  without  reasonable  cause,  to  attend  in 
obedience  to  a  subpoena,  or  to  be  sworn  or  examined  or 
answer  a  question  or  produce  a  book  or  paper,  or  to  sub- 
scribe and  swear  to  his  deposition  after  it  has  been  cor- 
rectly reduced  to  writing,  he  shall  be  guilty  9f  a  misde- 
meanor. 

§  70.  Recalcitrant  witnesses  punishable  as  for  con- 
tempt. If  a  person  In  attendance  before  the  commission 
or  a  commissioner  or  deputy  commissioner  refuses,  without 
reasonable  cause,  to  be  examined,  or  to  answer  a  legal  and 
pertinent  question  or  to  produce  a  book  or  paper,  when 
ordered  so  to  do  by  the  commission  or  a  commissioner  or 
deputy  commissioner,  the  commission  may  apply  to  a  jus- 
tice of  the  supreme  court  upon  proof  by  affidavit  of  the 
facts  for  an  order  returnable  in  not  less  than  two  nor  more 
than  five  days  directing  such  person  to  show  cause  before 
the  justice  who  made  the  order,  or  any  other  justice  of  the 
supreme  court,  why  he  should  not  be  committed  to  jail. 
Upon  the  return  of  such  order  the  justice  shall  examine 
under  oath  such  person  and  give  him  an  opportunity  to  be 
heard;  and  if  the  justice  determine  that  he  has  refused 
without  reasonable  cause  or  legal  excuse  to  be  examined  or 
to  answer  a  legal  and  pertinent  question,  or  to  produce  a 
book  or  paper  which  he  was  ordered  to  bring,  he  may  forth- 
with, by  warrant,  commit  the  offender  to  jail,  there  to  re- 
main until  he  submits  to  do  the  act  which  he  was  so  required 
to  do  or  is  discharged  according  to  law. 

§  71.  Fees  and  mileage  of  witnesses.  Each  witness  who 
appears  in  obedience  to  a  subpoena  before  the  commission 
or  a  commissioner  or  deputy  commissioner,  or  person  em- 
ployed by  the  commission  to  obtain  the  required  informa- 
tion, shall  receive  for  his  attendance  the  fees  and  mileage 
provided  for  witnesses  in  civil  cases  in  the  supreme  court, 


THE  STATE  INDUSTRIAL   COMMISSION  157 

which  shall  be  audited  and  paid  from  the  state  treasury  in 
the  same  manner  as  other  expenses  of  the  commission.  A 
witness  subpoenaed  at  the  instance  of  a  party  other  than 
the  commission,  a  commissioner,  deputy  commissioner  or 
person  acting  under  the  authority  of  the  commission  shall 
be  entitled  to  fees  or  compensation  from  the  state  treas- 
ury, if  the  commission  certify  that  his  testimony  was  ma- 
terial to  the  matte  rinvestigated,  but  not  otherwise. 

§  72.  Deposition.  The  commission  may  cause  deposi- 
tions of  witnesses  residing  within  or  without  the  state  to  be 
taken  in  the  manner  prescribed  by  law  for  like  depositions 
in  civil  actions  in  the  supreme  court. 

§  73.  Transcript  of  stenographer's  minutes ;  effect  as 
evidence.  A  transcribed  copy  of  the  testimony,  evidence 
and  procedure  or  of  a  specific  part  thereof,  or  of  the  tes- 
timony of  a  particular  witness  or  of  a  specific  part  thereof, 
on  any  investigation,  by  a  stenographer  appointed  by  the 
commission,  being  certified  by  such  stenographer  to  be  a 
true  and  correct  transcript  thereof  and  to  have  been  care- 
fully compared  by  him  with  his  original  notes,  may  be  re- 
ceived by  the  commission  with  the  same  effect  as  if  such 
stenographer  were  present  and  testified  to  the  facts  so  cer- 
tified, and  a  copy  of  such  transcript  shall  be  furnished  on 
demand  to  any  party  upon  payment  of  the  fee  provided  for 
a  transcript  of  similar  minutes  in  the  supreme  court. 

§  74.  Jurisdiction  of  commission  to  be  continuing.  The 
power  and  jurisdiction  of  the  commission  over  each  case 
shall  be  continuing,  and  it  may,  from  time  to  time,  make 
such  modification  or  change  with  respect  to  former  findings 
or  orders  relating  thereto,  as  in  its  opinion  may  be  just. 
(See  also  Section  22.) 

§  75.  Report  of  commission.  Annually  on  or  before  the 
first  day  of  February,  the  commission  shall  make  a  report 
to  the  legislature,  which  shall  include  a  statement  of  the 
number  of  awards  made  by  it  and  the  causes  of  the  acci- 
dents leading  to  the  injuries  for  which  the  awards  were 
made,  a  detailed  statement  of  the  expenses  of  the  com- 
mission, the  condition  of  the  state  insurance  fund,  together 
with  any  other  matter  which  the  commission  deems  proper 
to  report  to  the  legislature,  including  any  recommenda- 
tions it  may  desire  to  make. 

§  76.  Commission  to  furnish  blank  forms.  The  com- 
mission shall  prepare  and  cause  to  be  distributed  so  that 
the  same  may  be  readily  available  blank  forms  of  applica- 


158  workmen's  compensation 

tion  for  compensation,  notice  to  employers,  proofs  of  in- 
jury or  death,  of  medical  or  other  attendance  or  treat- 
ment, of  employment  and  wage  earnings,  and  for  such 
other  purposes  as  may  be  required.  Insured  employers 
shall  constantly  keep  on  hand  a  sufficient  supply  of  such 
blanks. 

§  77.  Expenses  of  administering  commission.  As  soon 
as  practicable  after  July  first,  nineteen  hundred  and  seven- 
teen, and  annually  thereafter,  the  commission  shall  ascer- 
tain the  total  amount  of  its  expenses  incurred  during  the 
preceding  fiscal  year,  in  connection  with  the  administration 
of  the  workmen's  compensation  law,  and  shall  thereupon 
assess  upon  and  collect  from  each  insurance  carrier,  in- 
cluding the  state  insurance  fund,  the  proportion  of  such 
expense  that  the  total  compensation  or  payments  made  by 
such  carrier  in  such  year  bore  to  the  total  compensation  or 
payments  made  by  all  insurance  carriers.  The  amounts 
so  secured  shall  be  transferred  to  the  state  treasury  to  re- 
imburse it  for  this  portion  of  the  expense  of  administering 
this  chapter.  (Sec.  77,  added  by  L.  1916,  Ch.  622,  ef- 
fective June  1,  1916.) 

ARTICLE  5. 

State  Insurance  Fund. 

Section  90.  Creation  of  state  fund. 

91.  State  treasurer  custodian  of  fund. 

92.  Surplus  and  reserve. 

93.  Investment  of  surplus  or  reserve. 

94.  Administration  expense. 

95.  Classification   of   risks   and   adjustment   of 

premiums. 

96.  Associations  for  accident  prevention. 

97.  Requirements  in  classifying  employment  and 

fixing  and  adjusting  premium  rates. 

98.  Time  of  payment  of  premiums. 

99.  Actions  for  collection  in  case  of  default. 

100.  Withdrawal  from  fund. 

101.  Audit  of  payrolls. 

102.  Falsification  of  payroll. 

103.  Wilful  misrepresentation. 

104.  Inspections. 

105.  Disclosures  prohibited. 


STATE  INSURANCE  FUND  159 

§  90.  Creation  of  state  fund.  There  is  hereby  created 
a  fund  to  be  known  as  "the  state  insurance  fund,"  for  the 
purpose  of  insuring  employers  against  liability  under  this 
chapter  and  of  assuring  to  the  person  entitled  thereto  the 
compensation  provided  by  this  chapter.  Such  fund  shall 
consist  of  all  premiums  received  and  paid  into  the  fund,  of 
property  and  securities  acquired  by  and  through  the  use 
of  moneys  belonging  to  the  fund  and  of  interest  earned 
upon  moneys  belonging  to  the  fund  and  deposited  or  in- 
vested as  herein  provided.  Such  fund  shall  be  adminis- 
.tered  by  the  commission  without  liability  on  the  part  of  the 
state  beyond  the  amount  of  such  fund.  Such  fund  shall  be 
applicable  to  the  payment  of  losses  sustained  on  account 
of  insurance  and  to  the  payment  of  expenses  in  the  man- 
ner provided  in  this  chapter. 

(For  a  discussion  of  the  liability  of  employers  who  in- 
sure in  the  State  Fund,  see  Part  II,  Sections  28,  29  and 
30.) 

§  91.  State  treasurer  custodian  of  fund.  The  state 
treasurer  shall  be  the  custodian  of  the  state  insurance 
fund ;  and  all  disbursements  therefrom  shall  be  paid  by  him 
upon  vouchers  authorized  by  the  commission  and  signed  by 
any  two  members  thereof.  The  state  treasurer  shall  give  a 
separate  and  additional  bond  in  an  amount  to  be  fixed  by 
the  governor  and  with  sureties  approved  by  the  state 
comptroller  conditioned  for  the  faithful  performance  of 
his  duty  as  custodian  of  the  state  fund.  The  state  treas- 
urer may  deposit  any  portion  of  the  state  fund  not  needed 
for  immediate  use,  in  the  manner  and  subject  to  all  the 
provisions  of  law  respecting  the  deposit  of  other  state 
funds  by  him.  Interest  earned  by  such  portion  of  the  state 
insurance  fund  deposited  by  the  state  treasurer  shall  be 
collected  by  him  and  placed  to  the  credit  of  the  fund. 

§  92.  Surplus  and  reserve.  Ten  per  centum  of  the 
premiums  collected  from  employers  insured  in  the  fund 
shall  be  set  aside  by  the  commission  for  the  creation  of  a 
surplus  until  such  surplus  shall  amount  to  the  sum  of  one 
thousand  dollars,  and  thereafter  five  per  centum  of  such 
premiums,  until  such  time  as  in  the  judgment  of  the  com- 
mission such  surplus  shall  be  sufficiently  large  to  cover 
the  catastrophe  hazard.  The  commission  shall  also  set  up 
and  maintain  reserves  adequate  to  meet  anticipated  losses 
and  carry  all  claims  and  policies  to  maturity,  which  re- 


160  workmen's  compensation 

serves  shall  be  computed  in  accordance  with  such  rules  as 
shall  be  approved  by  the  superintendent  of  insurance.  (Sec. 
90,  am'd  by  L.  1916,  Ch.  622,  effective   June  1,  1916.) 

§  93.  Investment  of  surplus  or  reserve.  The  commis- 
sion may,  pursuant  to  a  resolution  of  the  commission  ap- 
proved by  the  comptroller,  invest  any  of  the  surplus  or 
reserve  funds  belonging  to  the  state  insurance  fund  in  the 
same  securities  and  investments  authorized  for  investment 
by  savings  banks.  All  such  securities  or  evidences  of  in- 
debtedness shall  be  placed  in  the  hands  of  the  state  treas- 
urer who  shall  be  the  custodian  thereof.  He  shall  collect 
the  principal  and  interest  thereof,  when  due,  and  pay  the 
same  into  the  state  insurance  fund.  The  state  treasurer 
shall  pay  all  vouchers  drawn  on  the  state  insurance  fund 
for  the  making  of  such  investments  when  signed  by  two 
members  of  the  commission,  upon  delivery  of  such  securities 
or  evidences  of  indebtedness  to  him,  when  there  is  attached 
to  such  vouchers  a  certified  copy  of  the  resolution  of  the 
commission  authorizing  the  investment.  The  commission 
may,  upon  like  resolution  approved  by  the  comptroller,  sell 
any  of  such  securities. 

§  94.  Administration  expense.  The  entire  expense  of 
administering  the  state  insurance  fund  shall  be  paid  in  the 
first  instance  by  the  state,  out  of  moneys  appropriated 
therefor.  In  the  month  of  July,  nineteen  hundred  and  sev- 
enteen, and  annually  thereafter  in  such  month,  the  com- 
mission shall  ascertain  the  just  amount  incurred  by  the 
commission  during  the  preceding  fiscal  year,  in  the  ad- 
ministration of  the  state  insurance  fund,  and  shall  refund 
such  amount  to  the  state  treasury.  If  there  be  employees 
of  the  commission  other  than  the  commissioners  them- 
selves and  the  secretary  whose  time  is  devoted  partly  to 
the  general  work  of  the  commission  and  partly  to  the  work 
of  the  state  insurance  fund,  and  in  case  there  is  other  ex- 
pense which  is  incurred  jointly  on  behalf  of  the  general 
work  of  the  commission  and  the  state  insurance  fund,  an 
equitable  apportionment  of  the  expense  shall  be  made  for 
such  purpose  and  the  part  thereof  which  is  applicable  to 
the  state  insurance  fund  shall  be  chargeable  thereto.  (Sec. 
94,  am'd  by  L.  1916,  Ch.  622,  effective  June  1,  1916.) 

The  amendment  made  to  this  section  by  the  Laws 
of  1916,  makes  the  State  Fund  self-supporting  from  and 
after  July  1,  1916,  instead  of  from  and  after  January 


STATE  INSUEANCE  FUND  161 

1,  1917,  as  in  the  original  act.  The  former  provisions  of 
this  section  in  relation  to  the  expenses  in  connection 
with  the  examination,  determination  and  payment  of 
claims,  to  be  assessed  against  the  insurance  carriers,  is 
now  contained  in  Section  77. 

§  95.     Classification     of     risks     and     adjustment     of 
premiums.      Employments  coming  under  the  provisions  of 
this  chapter  shall  be  divided  for  the  purposes  of  the  state 
fund,  into  the  groups  set  forth  in  section  two  of  this  chap- 
ter.    Separate  accounts  shall  be  kept  of  the  amounts  col- 
lected and  expended  in  respect  to  each  such  group  for  con- 
venience in  determining  equitable  rates ;  but  for  the  pur- 
pose of  paying  compensation  the  state  fund  shall  be  deem- 
ed one  and  indivisible.     The  commission  shall  have  power 
to  rearrange  any  of  the  groups  set  forth  in  section  two  by 
withdrawing  any  employment  embraced  in  it  and  transfer- 
ring it  wholly  or  in  part  to  any  other  group,  and  from 
such  employments  to  set  up  new  groups  at  its  discretion. 
The  commission  shall  determine  the  hazards  of  the  differ- 
ent classes   composing  each  group   and  fix  the   rates  of 
premiums  therefor  based  upon  the  total  payroll  and  num- 
ber of  employees  in  each  of  such  classes  of  employment  at 
the  lowest  possible  rate  consistent  with  the  maintenance  of 
a  solvent  state  insurance  fund  and  the  creation  of  a  rea- 
sonable surplus  and  reserve;  and  for  such  purpose  may 
adopt  a  system  of  schedule  rating  in  such  a  manner  as  to 
take  account  of  the  peculiar  hazard  of  each  individual  risk. 
The  only  way  in  which  a  single  employer  in  the  State 
Fund  can  be  separately  grouped  is  where  the  nature  of 
his  business  and  the  degree  of  risk  of  injury  is  such  that 
he,  in  fact,  represents  a  group  by  himself,  subject,  how- 
ever, to  the  opportunity  of  other  employers  coming  with- 
in its  limitations  to  be  made  members  of  that  group; 
and  the  only  way  in  which  a  single  employer  in  the  State 
Fund  can  secure  a  rate  different  from  that  allowed  to 
other  employers  in  such  Fund  of  the  same  group  is 
through  a  system  of  schedule  rating  as  provided  in  the 
last  sentence  of  Sec.  9.5.     But,  for  dividend  purposes, 
even  an  employer  so  rated  still  remains  in  the  group  in 
which  he  is  placed  and  dividends  must  be  declared  as  a 
result  of  total  experience  of  the  group  of  which  he  is  a 
member  for  the  premium  period. 

Opinion  of  Attorney-General,  Jan.  28,  1916, 


162  workmen's  compensation 

§  96.  Associations  for  accident  prevention.  The 
employers  in  any  of  the  groups  described  in  section  two 
or  established  by  the  commission  may  with  the  approval  of 
the  commission  form  themselves  into  an  association  for  ac- 
cident prevention,  and  may  make  rules  for  that  purpose. 
If  the  commission  is  of  the  opinion  that  an  association  so 
formed  sufficiently  represents  the  employers  in  such  group, 
it  may  approve  such  rules,  and  when  so  approved  and  ap- 
proved by  the  industrial  board  of  labor  department  they 
shall  be  binding  on  all  employers  in  such  group.  If  such 
an  approved  association  appoint  an  inspector  or  expert 
for  the  purpose  of  accident  prevention,  the  commission  may 
at  its  discretion  provide  in  whole  or  in  part  for  the  pay- 
ment of  the  remuneration  and  expenses  of  such  inspector 
or  expert,  such  payment  to  be  charged  in  the  accounting 
to  such  group.  Every  such  approved  association  may 
make  recommendations  to  the  commission  concerning  the 
fixing  of  premiums  for  classes  of  hazards,  and  for  individ- 
ual risks  within  such  group. 

§  97.  Requirements  in  classifying  employment  and  fix- 
ing and  adjusting  premium  rates.  The  following  require- 
ments shall  be  observed  in  classifying  employments  and  fix- 
ing and  adjusting  premium  rates: 

1.  The  commission  shall  keep  an  accurate  account  of 
the  money  paid  in  premiums  by  each  of  the  several  classes 
of  employments  or  industries,  and  the  disbursements  on  ac- 
count of  injuries  and  deaths  of  employees  thereof,  includ- 
ing the  setting  up  of  reserves  adequate  to  meet  anticipat- 
ed losses  and  to  carry  the  claims  to  maturity,  and  also, 
on  account  of  the  money  received  from  each  individual  em- 
ployer and  the  amount  disbursed  from  the  state  insurance 
fund  on  account  of  injuries  and  death  of  the  employees  of 
such  employer,  including  the  reserves  so  set  up ; 

2.  On  January  first,  nineteen  hundred  and  fifteen,  and 
every  fifth  year  thereafter,  and  at  such  other  times  as  the 
commission,  in  its  discretion,  may  determine,  a  readjust- 
ment of  the  rate  shall  be  made  for  each  of  the  several 
groups  of  employment  or  industries  and  of  each  hazard 
class  therein,  which,  in  the  judgment  of  the  commission, 
shall  have  developed  an  average  loss  ratio,  in  accordance 
with  the  experience  of  the  commission  in  the  administration 


STATE  INStJUANCE  FUND  163 

of  the  law  as  shown  by  the  accounts  kept  as  provided  here- 
in; 

3.  If  any  such  accountin^y  show  an  aggregate  balance 
(deemed  by  the  commission  to  be  safely  and  properly  di- 
visible) remaining  to  the  credit  of  any  class  of  employ- 
ment or  industry,  after  the  amount  required  shall  have 
been  credited  to  the  surplus  and  reserve  funds  and  after 
the  payment  of  all  awards  for  injury  or  death  lawfully 
chargeable  against  the  same,  the  commission  may  in  its 
discretion  credit  to  each  individual  member  of  such  group, 
who  shall  have  been  a  subscriber  to  the  state  insurance 
fund  for  a  period  of  six  months  or  more  prior  to  the  time 
of  such  readjustment,  and  whose  premium  or  premiums  ex- 
ceed the  amount  of  the  disbursements  from  the  fund  on  ac- 
count of  injuries  or  death  of  his  employees  during  such 
period,  on  the  instalment  or  instalments  of  premiums  next 
due  from  him  such  proportion  of  such  balance  as  the 
amount  of  his  prior  paid  premiums  sustains  to  the  whole 
amount  of  such  premiums  paid  by  the  group  to  which  he 
belongs  since  the  last  readjustment  of  rates.  In  the  event 
that  any  member  of  the  group  who  has  heretofore  or  shall 
hereafter  withdraw  would  have  become  entitled  to  such 
dividend  if  he  had  remained  in  the  fund  the  commission  is 
empowered  to  pay  the  amount  of  the  dividend  to  such  em- 
ployer. (  Subd.  3,  am'd  by  L.  1916,  Ch.  622,  effective  June 
1,  1916.) 

4).  If  the  amount  of  premiums  collected  from  any  em- 
ployer at  the  beginning  of  any  period  of  six  months  is 
ascertained  and  calculated  by  using  the  estimated  ex- 
penditure of  wages  for  the  period  of  time  covered  by  such 
premium  payment  as  a  basis,  an  adjustment  of  the  amount 
of  such  premium  shall  be  made  at  the  end  of  such  six 
months,  and  the  actual  amount  of  such  premium  shall  be 
determined  in  accordance  with  the  amount  of  the  actual  ex- 
penditure of  wages  for  such  period ;  and,  if  such  wage  ex- 
penditure for  such  period  is  less  than  the  amount  on  which 
such  estimated  premium  was  collected,  such  employer  shall 
be  entitled  to  receive  a  refund  from  the  state  insurance 
fund  of  the  difference  between  the  amount  so  paid  by  him 
and  the  amount  so  found  to  be  actually  due,  or  to  have 
the  amount  of  such  difference  credited  on  succeeding 
premium  paj^ments,  at  his  option ;  and  if  such  actual  premi- 
um, when  so  ascertained,  exceeds  in  amount  a  premium  so 
paid  by  such  employer  at  the  beginning  of  such  six  months. 


164!  workmen's  compensation 

such  employer  shall  immediately  upon  being  advised  of  the 
true  amount  of  such  premium  due  forthwith  pay  to  the 
treasurer  of  the  state  an  amount  equal  to  the  difference 
between  the  amount  actually  found  to  be  due  and  the 
amount  paid  by  him  at  the  beginning  of  such  six  months' 
period. 

§  98.  Time  of  payment  of  premiums.  Except  as 
otherwise  provided  in  this  chapter,  all  premiums  shall  be 
paid  by  every  employer  into  the  state  insurance  fund  on 
or  before  July  first,  nineteen  hundred  and  fourteen,  and 
semi-annually  thereafter,  or  at  such  other  time  or  times 
as  may  be  prescribed  by  the  commission.  The  commission 
shall  mail  a  receipt  for  the  same  to  the  employer  and 
place  the  same  to  the  credit  of  the  state  insurance  fund 
in  the  custody  of  the  state  treasurer. 

§  99.  Action  for  collection  in  case  of  default.  If  an 
employer  shall  default  in  any  payment  required  to  be  made 
by  him  to  the  state  insurance  fund,  the  amount  due  from 
him  shall  be  collected  by  civil  action  against  him  in  the 
name  of  the  people  of  the  state  of  New  York,  and  it  shall 
be  the  duty  of  the  commission  on  the  first  Monday  of  each 
month  after  July  first,  ninteen  hundred  and  fourteen,  to 
certify  to  the  attorney-general  of  the  state  the  names  and 
residences,  or  places  of  business,  of  all  employers  known  to 
the  commission  to  be  in  default  for  such  payment  or  pay- 
ments for  a  longer  period  than  five  days  and  the  amount 
due  from  such  employer,  and  it  shall  then  be  the  duty  of 
the  attorney-general  forthwith  to  bring  or  cause  to  be 
brought  against  each  such  employer  a  civil  action  in  the 
proper  court  for  the  collection  of  such  amount  so  due, 
and  the  same  when  collected,  shall  be  paid  into  the  state 
insurance  fund,  and  such  employer's  compliance  with  the 
provisions  of  this  chapter  requiring  payments  to  be  made 
to  the  state  insurance  fund  shall  date  from  the  time  of  the 
payment  of  said  money  so  collected  as  aforesaid  to  the 
state  treasurer  for  credit  to  the  state  insurance  fund. 

§  100.  Withdrawal  from  fund.  Any  employer  may, 
upon  complying  with  subdivision  two  or  three  of  section 
fifty  of  this  chapter,  withdraw  from  the  fund  by  turning 
in  his  insurance  contract  for  cancellation,  provided  he  is 
not  in  arrears  for  premiums  due  the  fund  and  has  given 
to  the  commission  written  notice  of  his  intention  to  with- 
draw within  thirty  days  before  the  expiration  of  the  period 
for  which  he  has  elected  to  insure  in  the  fund;  provided 


STATE  INSURANCE  FUND  165 

that  in  case  any  employer  so  withdraws,  his  liability  to 
assessment  shall,  notwithstanding  such  withdrawal,  con- 
tinue for  one  year  after  the  date  of  such  withdrawal  as 
against  all  liabilities  for  such  compensation  accruing  prior 
to  such  withdrawal.    (Sec.  100,  am'd  by  L.  1916,  Ch.  622, 
effective  June  1,  1916.) 
(The  amendment  of  1916  makes  no  change  in  this 
section.     As  the  bill  amending  the  law  generally  was 
originally  drafted,  the  last  clause  in  this  section  relating 
to  assessments  was  repealed  but  this  clause  was  subse- 
quently restored,  leaving  the  section  as  it  originally  ex- 
isted. ) 

This  section  does  not  authorize  assessments  against 
employers  who  withdraw  from  the  Fund. 

Opinion  of  Attorney-General,  July  16,  1915. 

Upon  the  question  of  assessments,  see  also  Part  II, 
Sec.  29. 

§  101.  Audit  of  payrolls.  Every  employer  who  is  in- 
sured in  the  state  insurance  fund  shall  keep  a  true  and 
accurate  record  of  the  number  of  his  employees  and  the 
wages  paid  by  him,  and  shall  furnish  to  the  commission, 
upon  demand,  a  sworn  statement  of  the  same.  Such  record 
shall  be  open  to  inspection  at  any  time  and  as  often  as  the 
commission  shall  require  to  verify  the  number  of  employ- 
ees and  the  amount  of  the  payroll. 

§  102.  Falsification  of  payroll.  An  employer  who  shall 
wilfully  misrepresent  the  amount  of  the  payroll  upon  which 
the  premiums  chargeable  by  the  state  insurance  fund  is  to 
be  based  shall  be  liable  to  the  state  in  ten  times  the  amount 
of  the  difference  between  the  premiums  paid  and  the 
amount  the  employer  should  have  paid  had  his  payroll 
been  correctly  computed  and  the  liability  to  the  state  un- 
der this  section  shall  be  enforced  in  a  civil  action  in  the 
name  of  the  state  insurance  fund,  and  any  amount  so  col- 
lected shall  become  a  part  of  such  fund. 

§  103.  Wilful  misrepresentation.  Any  person  who  wil- 
fully misrepresents  any  fact  in  order  to  obtain  insurance 
in  the  state  insurance  fund  at  less  than  the  proper  rate  for 
such  insurance,  or  in  order  to  obtain  payment  out  of  such 
fund,  shall  be  guilty  of  a  misdemeanor. 


166  workmen's  compensation 

§  104.  Inspections.  The  commission  shall  have  the 
right  to  inspect  the  plants  and  establishments  of  employ- 
ers insured  in  the  state  insurance  fund ;  and  the  inspectors 
designated  by  the  commission  shall  have  free  access  to  such 
premises  during  regular  working  hours. 

§  105.  Disclosures  prohibited.  Information  acquired  by 
the  commission  or  its  officers  or  employees  from  employers 
or  employees  pursuant  to  this  chapter  shall  not  be  opened 
to  public  inspection,  and  any  officer  or  employee  of  the 
commission  who,  without  authority  of  the  commission  or 
pursuant  to  its  rules  or  as  otherwise  required  by  law  shall 
disclose  the  same  shall  be  guilty  of  a  misdemeanor. 

§  106.  Reports  of  state  insurance  fund ;  examina- 
tion by  insurance  department.  The  commission  shall 
make  reports  to  the  superintendent  of  insurance  concern- 
ing the  state  insurance  fund  at  the  same  times  and  in  the 
same  manner  as  is  required  from  mutual  employers'  lia- 
bility and  workmen's  compensation  corporations  by  sec- 
tion one  hundred  and  ninety-two  of  the  insurance  law,  and 
the  superintendent  of  insurance  may  examine  into  the  con- 
dition of  such  state  insurance  fund  at  any  time,  either 
personally  or  by  any  duly  authorized  examiner  appointed 
by  him,  for  the  purpose  of  determining  the  condition  of 
the  investments  and  the  adequacy  of  the  reserves  of  such 
fund.  (Sec.  106,  added  by  L.  1916,  Ch.  622,  effective 
June  1,  1916.) 

ARTICLE  6. 

Miscellaneous  Provisions 

Section  110.     Penalties  applicable  to  expense  of  commis- 
sion. 

111.  Record  and  report  of  injuries  by  employ- 

ers. 

112.  Information  to  be  furnished  by  employer. 

113.  Inspection  of  records  of  employers. 

114.  Interstate  commerce. 

115.  Penalties  for  false  representations. 

116.  Limitation  of  time. 

117.  Duties  of  commissioner  of  labor. 

118.  Unconstitutional  provisions. 

119.  Actions  or  causes  of  action  pending. 

§  110.  Penalties  applicable  to  expenses  of  commission. 
All  penalties  imposed  by  this  chapter  shall  be  applicable  to 


MISCELLANEOUS   PEO VISIONS  167 

the  expenses  of  the  commission.  When  collected  by  the 
commission  such  penalties  shall  be  paid  into  the  state 
treasury  and  be  thereafter  appropriated  by  the  legislature 
for  the  purposes  prescribed  by  this  section. 

§  111.     Record  and  report  of  injuries  by  employers. 
Every  employer  shall  keep  a  record  of  all  injuries,  fatal  or 
otherwise,  received  by  his  employees  in  the  course  of  their 
employment.    Within  ten  days  after  the  occurrence  of  an 
accident  resulting  in  personal  injury  a  report  thereof  shall 
be  made  in  writing  by  the  employer  to  the  commission 
upon  blanks  to  be  procured  from  the  commission  for  that 
purpose.     Such  report  shall  state  the  name  and  nature  of 
the  business  of  the  employer,  the  location  of  his  estab- 
lishment or  place  of  work,  the  name,  address  and  occupa- 
tion of  the  injured  employee,  the  time,  nature  and  cause 
of  the  injury  and  such  other  information  as  may  be  re- 
quired by  the  commission.     An  employer  who  refuses  or 
neglects  to  make  a  report  as  required  by  this  section  shall 
be  guilty  of  a  misdemeanor,  punishable  by  a  fine  of  not 
more  than  five  hundred  dollars. 
(The  Commission  has  ruled  that  a  report  of  an  acci- 
dent made  pursuant  to  the  prov^isions  of  this  section  is  a 
sufficient  compliance  with  the  requirements  of  Section 
20  A,  87  and  126  of  the  Labor  Law  and  that  duplicate 
reports  of  accidents  are  unnecessary. ) 

§  112.  Information  to  be  furnished  by  employer. 
Every  employer  shall  furnish  the  commission,  upon  request, 
any  information  required  by  it  to  carry  out  the  provisions 
of  this  chapter.  The  commission,  a  commissioner,  deputy 
commissioner,  or  any  person  deputized  by  the  commission 
for  that  purpose,  may  examine  under  oath  any  employer, 
officer,  agent  or  employee.  An  employer  or  an  employee 
receiving  from  the  commission  a  blank  with  directions  to 
file  the  same  shall  cause  the  same  to  be  properly  filled  out 
so  as  to  answer  fully  and  correctly  all  questions  therein, 
or  if  unable  to  do  so,  shall  give  good  and  sufficient  reasons 
for  such  failure.  Answers  to  such  questions  shall  be  veri- 
fied under  oath  and  returned  to  the  commission  within  the 
period  fixed  by  the  commission  therefor. 

§  113.  Inspection  of  records  of  employers.  All 
books,  records  and  payrolls  of  the  employers  showing  or 
reflecting  in  any  way  upon  the  amount  of  wage  expendi- 
tures of  such  employers  shall  always  be  open  for  inspec- 


168  workmen's  compensation 

tion  by  the  commission  or  any  of  its  authorized  auditors, 
accountants  or  inspectors  for  the  purpose  of  ascertaining 
the  correctness  of  the  wage  expenditure  and  number  of 
men  employed  and  such  other  information  as  may  be  nec- 
essary for  the  uses  and  purposes  of  the  commission  in  the 
administration  of  this  chapter. 

§  114.     Interstate  commerce.    The    provisions    of   this 
chapter  shall  apply  to  employers  and  employees  engaged 
in  intrastate,  and  also  in  interstate  or  foreign  commerce, 
for  whom  a  rule  of  liability  or  method  of  compensation  has 
been  or  may  be  established  by  the  congress  of  the  United 
States,  only  to  the  extent  that  their  mutual  connection 
with  intrastate  work  may  and  shall  be  clearly  separable 
and  distinguishable  from  interstate  or  foreign  commerce, 
except  that  such  employer  and  his  employees  working  only 
in  this  state  may,  subject  to  the  approval  and  in  the  man- 
ner provided  by  the  commission  and  so  far  as  not  forbid- 
den by  any  act  of  congress,  accept  and  become  bound  by 
the  provisions  of  this  chapter  in  like  manner  and  with  the 
same  effect  in  all  respects  as  provided  herein  for  other  em- 
ployers and  their  employees. 
The  compensation  law  applies  to  employees  engaged 
in  interstate  commerce  for  whom  no  rule  of  liability  or 
method  of  compensation  has  been  established  by  Con- 
gress.   It  was  held  accordingly  that  the  law  applies  to 
employees  engaged  in  the  operation,  loading  and  un- 
loading of  vessels  engaged  in  interstate  commerce,  as  no 
rule  of  liability  or  method  of  compensation  has  been  es- 
tablished by  Congress  for  such  employees. 

The  fact  that  the  compensation  law  imposes  an  inci- 
dental burden  upon  interstate  commerce  does  not  render 
it  unconstitutional. 

Jensen,  Matter  of  vs.  Southern  Pacific  Co.,  215  N.  Y. 
514. 

An  employee  injured  upon  a  vessel  upon  the  navigable 
waters  of  the  United  States  has  the  option  of  claiming 
compensation  or  proceeding  by  suit  in  admiralty. 

Walker,  Matter  of  t^s.  Clyde  Steamship  Co.,  215  N.  Y. 

529. 

The  compensation  law  applies  to  railroad  employees 

injured  while  engaged  in  intrastate  work;  and  also  to 

railroad  emploj'^ees  injured  while  engaged  in  interstate 


INTERSTATE  COMMERCE  169 

commerce  where  the  injury  is  not  due  to  negligence  at- 
tributed to  the  employer. 

Winfield,  Matter  of  vs.  New  York  Central  R.  R.  Co.,  168 
App.  Div.  351 ;  153  N.  Y.  Supp.  499 ;  aff.  216  N.  Y.  284. 


In  the  following  cases  in  which  compensation  was 
awarded,  it  was  held  that  the  injured  workman  was  not 
engaged  in  interstate  commerce : 

Where  the  claimant  was  making  repairs  in  a  car  shop 
to  a  car  which  had  been  used  indiscriminately  in  inter- 
state and  intrastate  commerce. 

Parsons,  Matter  of  vs.  Delaware  <§•  Hudson  Co.,  167 
App.  Div.  536;  153  N.  Y.  Supp.  179. 

Okrzsezs,  Matter  of  vs.  Lehigh  Valley  R.  R.  Co.,  170 
App.  Div.  15 ;  155  N.  Y.  Supp.  919. 

Where  the  injured  workman  was  a  brakeman  injured 
while  switching  empty  cars  which  did  not  go  outside  of 
the  State  of  New  York  but  in  connection  with  other 
roads  carried  passengers  and  baggage  coming  from  or 
going  to  other  states. 

Fair  child.  Matter  oi  vs.  Pennsylvania  R.  R.  Co.,  170 
App.  Div.  135;  155  N.  Y.  Supp.  751. 

Where  the  employee  was  working  on  a  new  telegraph 
line  which  was  to  take  the  place  of  the  old  line  on  the 
opposite  side  of  the  tracks. 

Moore,  Matter  of  vs.  Lehigh  Valley  R.  R.  Co.,  2  N.  Y. 
St.  Dep.  Rep.  472 ;  169  App.  Div  .177 ;  154  N.  Y.  Supp. 
620. 

Where  the  injured  workman  was  a  watchman  over 
new  construction  work. 

Claim  31018,  White,  Matter  of  vs. -New  York  Central 
R.  R.  Co.,  2  N.  Y.  St.  Dep.  Rep.  477;  Aff.  216  N.  Y. 
Memo.  653. 

Where  the  work  was  the  taking  of  an  inventory  of 
supplies  (which  had  not  yet  been  used)  at  the  request  of 
the  Interstate  Commerce  Commission. 

Claim  No.  12635,  Waite,  Matter  of  vs.  Pennsylvania 
R.  R.,  Aff.  156  N.  Y.  Supp.  1149.     (Without  opinion.) 

( See  also  Part  I  Sections  20  to  22  inclusive.  For  the 
Federal  Employers'  Liability  Act  see  Appendix.) 


170  WORKMEN  S   COMPENSATION 

Where  the  administrator  settled  with  the  railroad 
company  for  the  sum  of  $800,  an  award  was  subsequent- 
ly made  to  three  minor  children,  it  appearing  that  the 
employee's  death  was  not  due  to  negligence. 

William  H.  Buell,  deceased,  vs.  N.  Y.  Central  R.  R.  Co., 
The  Bulletin,  Vol.  1,  No.  5,  page  12. 

§  115.  Penalties  for  false  representation.  If  for  the 
purpose  of  obtaining  any  benefit  or  payment  under  the 
provisions  of  this  chapter,  either  for  himself  or  any  other 
person,  any  person  wilfully  makes  a  false  statement  or 
representation,  he  shall  be  guilty  of  a  misdemeanor. 

§  116.  Limitation  of  time.  No  limitation  of  time  pro- 
vided in  this  chapter  shall  run  as  against  any  person  who 
is  mentally  incompetent  or  a  minor  dependent  so  long  as 
he  has  no  committee,  guardian  or  next  friend. 

§  117.  Duties  of  commissioner  of  labor.  The  commis- 
sioner of  labor  shall  render  to  the  commission  any  proper 
aid  and  assistance  by  the  department  of  labor  as  in  his 
judgment  does  not  interfere  with  the  proper  conduct  of 
such  department. 

§  118.     Unconstitutional  provisions.    If  any  section  or 
provision  of  this  chapter  be  decided  by  the  courts  to  be 
unconstitutional  or  invalid,  the  same  shall  not  affect  the 
validity  of  the  chapter  as  a  whole  or  any  part  thereof  other 
than  the  part  so  decided  to  be  unconstitutional  or  invalid. 
(The  constitutionality  of  the  compensation  law  was 
upheld  generally  by  the  Court  of  Appeals  in  the  Matter 
of  Jensen  vs.  Southern  Pacific  Co.,  215  N.  Y.  514,  dis- 
tinguishing Ives  vs.  So.  Buffalo  Railway  Co.,  201  N.  Y. 
271.) 

§  119.  Actions  or  causes  of  action  pending.  This  act 
shall  not  affect  any  action  pending  or  cause  of  action 
existing  or  which  accrued  prior  to  July  first,  nineteen  hun- 
dred and  fourteen. 

ARTICLE  7. 

Laws  Repealed;  When  to  Take  Effect. 

Section  130.     Laws  repealed. 

131.     When  to  take  effect. 

§  130.  Laws  repealed.  Article  fourteen-a  and  sections 
two  hundred  and  fifteen  to  two  hundred  and  nineteen-g, 


MISCELLANEOUS  PROVISIONS  171 

both  inclusive,  of  chapter  thirty-six  of  the  laws  of  nineteen 
hundred  and  nine,  as  amended*  b}"^  chapter  six  hundred 
and  seventy-four  of  the  laws  of  nineteen  hundred  and  ten, 
are  hereby  repealed. 

§  131.  When  to  take  effect.  This  chapter  shall  take 
effect  immediatelyt,  provided  that  the  application  of  this 
chapter  as  between  employers  and  employees  and  the  pay- 
ment of  compensation  for  injuries  to  employees  or  their 
dependents,  in  case  of  death,  shall  take  effect  July  first, 
nineteen  hundred  and  fourteen,  but  payments  into  the  state 
insurance  fund  may  be  made  prior  to  July  first,  nineteen 
hundred  and  fourteen. 

§  2.  This  act  shall  take  effect  immediately,  except  as 
provided  in  section  one  hundred  and  thirty-one  as  re- 
enacted  hereby. 

*  Should  read  "added." 

t  L.  1913,  ch.  816,  has  words  "January  first,  nineteen 
hundred  and  fourteen"  instead  of  word  "immediately." 


RULES 

STATE  WORKMEN'S  COMPENSATION 

COMMISSION 


RULES 

STATE  WORKMEN'S  COMPENSATION 

COMMISSION. 

(Now  State  Industrial  Commission.) 
Adopted  June  10,  1914. 

1.  Form  of  notices. 

2.  To  what  offices  notices  shall  be  sent. 

3.  Which  statements  under  oath. 

4.  'Proof  of  average  daily  wages. 

5.  Notice  of  presentation  of  claim. 

6.  Witness  put  under  oath. 

7.  Claim  for  compensation. 

8.  Who  may  examine. 

9.  Who  may  inspect. 

10.  Secretary  shall  digest  the  evidence. 

11.  Medical  examination  of  claimants. 

12.  Order  in  dealing  with  claim. 

13.  Reference  of  claim  to  medical  director. 

14.  Special  Investigation  through  deputies. 

15.  Reference  of  all  communications  to  the  actuary. 

16.  Passing  upon  claim. 

17.  Action  upon  award  by  commissioner  or  deputy  com- 

missioner. 

18.  Action  upon  report  of  arbitrators. 

19.  Hearing  judicial  but  not  formal. 

20.  Stenographer's  report  of  hearings. 

21.  Requisites  to  application  for  review. 

22.  Docketing  of  papers. 

23.  Employees   receiving  or  disbursing  money   to  give 

bond. 

24.  What  employers  and  what  employees  subject  to  the 

act. 

25.  Rules  for  computing  weekly  wages. 

26.  Revision  of  award  for  reduction  of  earning  capacity. 

27.  Ruling  as  to  lien  for  physician's  services,  etc. 

28.  Time  for  making  periodical  payments. 

29.  Method  of  paying  compensation. 

30.  When  commuted  and  sued  for. 

175 


176  workmen's  compensation 

31.  Paying  present  value  into  state  fund. 

32.  Methods  of  paying  compensation. 

33.  Commuted  value  demanded  of  insolvents. 

34.  Physician's  fees,  etc.,  need  not  be  insured. 

35.  Policies  of  companies  must  insure  all  entitled. 

36.  Condition  of  remitting  penalty  for  non-compliance. 

37.  Commission  to  supply  blanks. 

38.  Expense  accounts  of  commission. 

39.  Classifying  employments  of  a  single  employer. 

40.  How  interstate  and  foreign  commerce  employers  may 

comply. 

41.  Hours  of  sessions. 

42.  When  physician's  bill  not  to  be  considered. 

43.  Employees  insured  in  state  fund. 

44.  Premiums  payable  to  state  fund. 

45.  How  disbursements  from  state  fund  made. 

46.  Monthly  session  to  consider  report  of  state  fund. 

47.  Form  of  state  fund  accounts. 

48.  Readjustment  of  premium  payroll  to  state  fund. 

49.  Time  for  paying  premiums  to  state  fund. 

50.  Repeal,  amendment  or  adoption  of  rules. 

1.  Form  of  notices.  For  notices  of  injury  and  of 
death  required  by  section  18  of  the  Workmen's  Compensa- 
tion Act  to  be  given  the  commission  and  the  employer, 
blanks  as  per  form  Nos.  C-1  and  C-24,  shall  be  provided ; 
but  any  notice  which  furnishes  substantially  the  informa- 
tion called  for  by  such  section  shall  be  deemed  sufficient 
whether  upon  such  blank  or  not. 

2.  To  what  offices  notices  shall  be  sent.  All  notices 
should  be  sent  to  the  principal  offices  of  the  commission  in 
the  Capitol,  Albany,  New  York,  or  should  be  sent  to  the 
office  of  the  commission.  No.  1  Madison  Avenue  (now  230 
Fifth  Ave.),  New  York  City. 

3.  Which  statements  under  oath.  The  notices  of  in- 
jury from  the  employee  and  from  the  employer  and  the 
statements  made  and  signed  by  the  attending  physician 
or  physicians  shall  be  taken  as  and  constitute  part  of  the 
proof  in  all  cases,  though  not  under  oath;  a  statement 
must  be  made  under  oath  or  by  affirmation,  of,  and  in  re- 
gard to,  every  claim,  and  all  statements  offered  to  contro- 
vert the  same  must  also  be  under  oath  or  by  affirmation. 
Other  statements  may  be  received  though  not  verified. 

4.  Proof  and  average  daily  wages.     If    the    state- 


BUIiES  OF  THE  COMMISSION  177 

inents  of  the  employer  and  of  the  employee  as  to  his  aver- 
age daily  wages,  contained  in  their  respective  notices  of 
injury,  agree,  the  commission  will,  at  its  discretion,  base 
its  award  upon  such  as  the  daily  wages  without  requiring 
other  evidence  regarding  the  same;  otherwise  (and  in  every 
case  if  there  be  reason  to  suspect  that  the  employee  is  of 
the  class  described  in  subdivision  3  of  section  14  of  the 
act)  an  investigation  shall  be  made  and  such  further  evi- 
dence required  as  the  commission  may  deem  necessary  to 
determine  the  average  daily  wages  under  the  provisions  of 
section  14  of  the  act. 

5.  Notice  of  presentation  of  claim.  Upon  a  claim 
for  compensation  being  presented  to  the  commission,  there 
shall  be  mailed  to  the  emplo3'^er  and  to  his  insurance  car- 
rier a  copy  of  the  claim,  together  with  notice  that  the  same 
will  come  before  the  commission  on  a  certain  day  and  that 
an  award  may  be  made  upon  the  evidence  then  in  hand  un- 
less a  hearing  is  demanded  or  an  adjournment  had. 

6.  Witness  put  under  oath.  In  any  investigation, 
inquiry  or  hearing,  by  the  commission  or  by  a  commis- 
sioner or  by  a  deputy  commissioner  duly  deputized  to 
make  the  same,  each  person  interrogated  will,  at  the  dis- 
cretion of  the  commission,  commissioner  or  deputy  com- 
missioner, conducting  the  investigation,  be  required  to 
answer  under  oath  (or  by  affirmation)  and  to  produce 
any  book  or  paper  in  his  possession  or  custody  pertinent 
to  the  inquiry. 

7.  Claim  for  compensation.  Claims  for  compensation 
for  disability  or  death  shall  be  presented  to  the  commis- 
sion as  required  by  section  20  of  the  act,  upon  blank  form 
No.  C-3  for  disability,  and  blank  form  No.  C-24  for 
death,  which  shall  be  filled  out  and  sworn  to  (or  affirmed) 
by  the  injured  employee  or  a  dependent  or  some  one  on 
his  or  her  behalf,  as  the  case  may  be,  and  mailed  to  the 
commission  in  the  same  manner  as  notices  of  injury  or  of 
death ;  but  a  writing  which  sets  forth  the  claims  shall  not 
be  rejected  as  insufficient  because  not  upon  one  of  such 

blank  forms  or  because  not  verified. 
(Under  Section  20  of  the  Compensation  Law  as  amended  by  Chapter  167 
of  the  laws  of  1915,  the  claim  for  compensation  must  first  be  presented 
to  the  employer.     If  rejected  or  if  no  agreement  is  made  within  ten  days, 
the  claim  may  be  presented  to  the  Commission.) 

8.  Who  may  examine.  Physical  examinations  may  be 
made  by  the  medical  director  or  one  of  his  assistants,  by  a 
district  physician  or  by  any  other  physician  duly  author- 


178  woekmen's  compensation 

ized  by  the  commission  or  the  medical  director. 

9.  Who  may  inspect.  All  inspection  shall  be  made  by 
the  commission,  by  a  commissioner,  or  deputy  commis- 
sioner, or  other  person  specially  authorized  by  the  com- 
mission. 

10.  Secretary  shall  digest  the  evidence.  When  a 
claim  shall  be  brought  before  the  commission,  the  secretary 
shall  present  a  digest  of  the  evidence  received  upon  the 
questions  necessary  to  be  determined  by  the  Commission 
with  a  list  of  all  documents  upon  which  the  digest  is  predi- 
cated, and  shall  provide  a  copy  of  such  digest  for  each 
commissioner.  The  original  digest  shall  be  marked  by 
him  so  as  to  identify  it  with  the  claim  and  with  the  day 
when  it  was  so  presented,  and  shall  be  filed  with  the  claim 
papers  to  which  it  refers. 

11.  Medical  examination  of  claimants.  Whenever, 
through  insufficiency  of  proof,  it  is  deemed  necessary, 
the  commission  or  a  commissioner  or  deputy  commis- 
sioner may  order  the  examination  of  a  claimant  by  the 
local  medical  examiner.  The  report  of  such  examiner 
shall  be  confidential.  If  able  to  do  so,  the  claimant  must 
present  himself  at  the  office  of  the  local  medical  examiner 
for  examination  in  case  this  is  requested;  if  the  claimant 
is  not  able  to  attend  there,  the  local  medical  examiner 
must  call  upon  the  claimant.  Any  case  calling  for  expert 
examination  may  be  referred  to  a  specialist,  employed 
by  the  commission,  for  his  examination. 

The  expense  of  all  such  examinations  shall  be  paid  by 
the  commission  at  rates  agreed  upon  by  it  and  by  the 
medical  examiner  in  his  contract  of  employment. 

12.  Order  in  dealing  with  claim.  Upon  receipt  of  a 
claim  for  compensation,  the  chief  of  the  claim  bureau 
shall  determine  if  claimant's  employer  is  insured,  and,  if 
so,  with  what  insurance  carrier  and  whether  or  not,  on 
the  papers  in  hand,  the  claim  is  compensatable.  If  so, 
it  shall  be  docketed. 

The  papers,  when  complete,  shall  be  analyzed  by  the 
chief  of  the  claim  bureau  or  his  assistant  and  summarized 
for  presentation  to  the  commission.  Such  summary  shall 
embrace  findings  of  facts,  offered  to  be  passed  upon  by 
the  commission,  upon  which  its  decision  may  be  predi- 
cated. 

13.  Reference  of  claim  to  a  medical  director. 
Whenever,  in  the  opinion  of  the  chief  of  the  claim  bureau, 


EUliES  OF  THE  COMMISSION  179 

it  is  desirable  to  have  the  opinion  of  the  medical  director 
upon  the  nature  and  extent  of  the  injury,  the  claim  pa- 
pers shall  be  referred  to  him  for  his  opinion  thereon 
and  for  such  further  investigation  as  he  may  order. 

14.  Special  investigation  through  deputies.  All  cases 
of  special  investigation,  other  than  medical,  because  of  in- 
sufficient evidence,  conflict  of  testimony,  ambiguity,  sus- 
picion of  fraud  or  simulation  or  malingering  shall,  unless 
otherwise  ordered,  be  referred  to  the  deputy  commissioner 
for  the  district  in  which  the  claimant  resides. 

15.  Reference  of  all  communications  to  the  actuary. 
All  communications  of  future  payment  of  compensation 
shall  be  computed  by  the  actuary  or  his  assistant,  using 
such  interest,  mortality,  remarriage  and  other  factors  as 
shall  be  adopted  by  the  commission  for  the  purpose;  the 
results  of  all  such  computations  shall  be  reported  to  the 
commission  and  shall  not  be  given  out  except  as  author- 
ized by  it. 

16.  Passing  upon  a  claim.  With  the  copy  of  the 
claim  to  be  sent  to  the  employer  and  his  insurance  carrier, 
there  shall  be  sent  a  notice  of  the  day  not  more  than  ten 
days  after  the  date  of  the  notice  of  claim  when  the  claim 
will  come  before  the  commission  for  consideration.  If 
upon  such  day  or  any  subsequent  day  to  which  such  con- 
sideration may  be  adjourned,  the  evidence  before  the 
commission,  either  upon  a  hearing  or  without  a  hearing, 
establishes,  in  its  opinion,  all  the  facts  necessary  to  de- 
termine the  right  to  compensation,  the  amount  thereof 
and  the  persons  entitled  thereto,  it  shall  make  a  decision 
in  accordance  therewith,  granting  or  denying  compensa- 
tion, and  shall  make  and  file  with  such  decision  a  finding 
of  the  facts  upon  which  the  same  is  made. 

(The  requirement  of  ten  days'  notice  has  been  modified  by  the  Com- 
mission in  practice.  Notice  of  five  days  is  usually  given  but  the  time  is 
frequently  less.) 

17.  Action  upon  av^rard  by  commissioner  or  deputy 
commissioner.  In  a  case  where  a  commissioner  or  a 
deputy  commissioner  shall  have  made  an  award,  decision 
or  order,  as  provided  in  section  65  of  the  act,  notice  thereof 
shall  be  mailed  to  the  employer,  his  insurance  carrier  and 
each  claimant  for  compensation  specifying  the  day  upon 
which  the  same  will  be  brought  before  the  commission  for 
approval  and  confirmation  and  upon  such  day  or  any  sub- 
sequent day  to  which  such  consideration  may  be  adjourned. 


180  workmen's  compensation 

the  Commission  may  approve  and  confirm  such  award,  deci- 
sion or  order  and  order  the  same  filed  in  its  office  or  may 
modify  the  same,  and,  as  so  modified,  approve,  confirm 
and  order  it  filed  or  may  wholly  reject  the  same  and  make 
its  own  award  with  or  without  further  investigation  or 
hearing. 

18.  Action  upon  report  of  arbitrators.  In  case  an  ar- 
bitration shall  have  been  instituted  in  regard  to  any  claim 
under  the  provisions  of  section  20  of  the  act,  upon  receipt 
of  the  report  of  the  arbitration  committee,  notices  thereof 
shall  be  mailed  to  the  employer,  his  insurance  carrier  and 
each  claimant  for  compensation  specifying  the  day  upon 
which  such  report  will  come  before  the  commission  for  con- 
sideration and  upon  such  day  or  any  subsequent  day  to 
which  such  consideration  may  be  adjourned,  the  commis- 
sion may  adopt,  modify  and  adopt  as  modified  or  wholly 
reject  such  report  and  make  its  award,  with  or  without 
further  investigation  or  hearing. 

19.  Hearing  judicial  but  not  formal.  Every  hearing 
upon  a  claim,  held  before  the  commission,  a  commis- 
sioner or  a  deputy  commissioner,  or  an  arbitration 
committee  shall  be  conducted  as  a  judicial  proceed- 
ing, all  witnesses  testifying  under  oath  or  by  affirma- 
tion, and  a  record  of  the  proceedings  shall  be  made 
and  kept.  Such  hearing  shall  be  conducted  in  such  man- 
ner as  to  ascertain  the  substantial  rights  of  the  parties 
and  the  commission,  commissioner,  deputy  commissioner 
or  arbitration  committee  therein  shall  not  be  bound  (see 
sec.  68  of  the  act)  by  common  law  or  statutory  rules  of 
evidence  or  by  technical  or  formal  rules  of  procedure. 

20.  Stenographer's  report  of  hearings.  The  proceed- 
ings of  every  hearing  before  the  commission  or  before  a 
commissioner,  deputy  commissioner  or  board  of  arbitra- 
tion shall  be  taken  down  by  a  stenographer  appointed  by 
the  commission  and  a  report  thereof,  certified  by  such 
stenographer  to  be  a  true  and  correct  report  of  such  pro- 
ceedings and  to  have  been  carefully  compared  by  him  with 
his  original  notes,  may  be  received  in  evidence  with  the 
same  effect  as  if  such  stenographer  were  present  and  testi- 
fied to  the  facts  so  certified. 

21.  Requisites  to  application  for  review.  The  commis- 
sion will  not  grant  reviews  of  awards  upon  the  application 
of  a  party  or  parties  except  such  application  be  made  upon 
the  grounds  of  a  change  in  conditions,  as  provided  in  sec- 


EULES  OF  THE  COMMISSION  181 

tion  22  of  the  act,  and  be  accompanied  with  a  verified 
statement  of  the  facts  alleged  to  constitute  such  change 
of  conditions ;  but  upon  its  own  motion  it  will  exercise  its 
continuing  jurisdiction  over  each  case  and  for  reasons 
deemed  by  it  to  be  sufficient  will,  from  time  to  time,  make 
such  modification  or  change  with  respect  to  its  former 
findings  or  orders  relating  to  any  such  case,  as  in  its  opin- 
ion may  be  just,  including  the  making  of  awards  in  cases 
where  they  have  been  denied. 

22.  Docketing  of  papers.  The  notice  of  injury  or 
other  notice  or  paper  relating  to  an  injury  first  coming 
to  the  attention  of  the  commission  shall  be  docketed  and 
given  a  number;  and  each  paper  thereafter  filed  in  con- 
nection with  such  injury  shall  be  entered  upon  this  docket 
and  be  given  the  same  number  as  the  paper  first  received. 

23.  Employees  receiving  or  disbursing  money  to  give 
bond.  All  employees  of  the  commission,  who  shall  be 
authorized  to  receive  or  to  disburse  moneys  for,  or  on  be- 
half of,  the  commission,  shall  give  to  the  commission  and 
maintain  with  it  a  bond  or  undertaking  in  such  amount 
as  may  be  fixed  by  the  commission,  signed  by  two  sureties 
or  by  a  corporation  duly  authorized  to  transact  the  busi- 
ness of  fidelity  insurance  in  the  state  of  New  York,  subject 
to  the  approval  of  the  attorney-general  as  to  form  and  of 
the  comptroller  as  to  sufficiency. 

24.  What  employers  and  what  employees  subject  to 
the  act.  The  commission  for  the  purpose  of  the  state  in- 
surance fund  and  of  carrying  into  effect  the  provisions  of 
this  chapter  construes : 

(1)  That  section  2  of  the  act  means  that  each  em- 
ployer who  shall  be  adjudged  by  the  commission  to  be 
conducting  a  hazardous  employment,  as  defined  in  such  sec- 
tion, is  required  by  section  50  of  the  act  to  secure  the  pay- 
ment of  compensation  at  the  scale  provided  in  the  act  for 
injuries  to  or  deaths  of  employees  engaged  in  his  service 
upon  the  premises  or  at  the  plant  where  such  employment 
is  carried  on,  or  in  the  course  of  employment  away  from 
such  plant,  due  to  accident  arising  out  of  and  in  the 
course  of  employment  by  him;  and  all  orders,  decisions 
and  awards  will  be  made,  and  all  policies  of  the  state  fund 
will  be  issued,  upon  this  basis. 

(2)  That  every  generic  name  of  employment  in  the 
groups  enumerated  in  section  2  of  the  act,  was  intended 
by  the  legislature  to  cover  and  designate  broadly  all  haz- 


182  workmen's  compensation 

ardous  employments  of  the  general  nature  and  char- 
acter indicated  by  such  name  which  are  not  elsewhere  in 
such  groups  specifically  mentioned  and  that  the  commis- 
sion is  vested  with  the  power  and  duty  to  determine,  for  the 
purpose  of  carrying  the  provisions  of  the  act  into  effect 
and  for  the  purposes  of  the  state  insurance  fund,  which 
employments  are  included  under  each  such  generic  name. 

(3)  That  the  word  "manufacture,"  wherever  found  in 
section  2  of  the  act,  includes,  unless  the  contrary  is  plain- 
ly indicated,  not  only  manufacture  of  each  material  named, 
but  also  the  manufacture  of  the  same,  as  the  sole  or  chief 
component  element,  into  articles  for  use  carried  on  by 
the  employer  for  pecuniary  gain. 

(4)  That  the  words  "manufacture"  and  "construc- 
tion" and  other  words  of  like  import  include  repair  when 
carried  on  as,  or  as  a  part  of,  "trade,  business  or  occupa- 
tion carried  on  by  the  employer  for  pecuniary  gain." 

25.  Rules  for  computing  weekly  wages.  The  rules  for 
determining  the  average  weekly  wages  under  the  provisions 
of  section  14  shall  be  as  follows: 

(a)  If  there  be  no  dispute  as  to  average  daily  wage 
or  salary,  multiply  same  by  300  and  divide  by  52. 

(b)  If  the  average  daily  wage  or  salary  be  estab- 
lished under  the  provisions  of  subdivision  1  or  2  of  sec- 
tion 14  of  the  act,  multiply  same  by  300  and  divide  by 
52. 

(c)  If  the  average  annual  earnings  be  established 
under  the  provisions  of  subdivision  3  of  section  14  of 
the  act,  divide  by  52. 

(d)  If  facts  be  established  as  per  subdivision  5  of 
section  14  of  the  act,  modify  average  daily  wage  or  sal- 
ary as  found  by  (a),  (b)  or  (c)  in  accordance  with  the 
facts  established  by  such  evidence,  such  modification,  how- 
ever, to  affect  the  compensation  only  from  the  day  when 
the  employee  reaches  (or  if  deceased,  would  have  reached) 
the  age  of  21  or  a  later  day  after  which  in  the  opinion  of 
the  commission  his  wages  or  salary  would  have  been  so  in- 
creased. 

26.  Revision  of  award  for  reduction  of  earning 
capacity.  In  determining  the  difference  between  the  aver- 
age weekly  wages  of  an  employee  and  his  wage-earning  ca- 
pacity after  an  injury  in  the  same  employment  or  other- 
wise under  subdivision  3  or  subdivision  4  of  section  15  of 
the  act,  the  difference  between  such  wages  before,  and  the 


EULES  OF  THE  COMMISSION  183 

actual  wages  after,  such  injury  may,  in  the  discretion  of 
the  commission,  be  made  the  basis  for  its  award  of  compen- 
sation for  partial  disability,  subject,  however,  to  modifica- 
tion thereof  upon  a  proper  showing  under  section  22  that 
such  actual  wages  so  received  after  the  injury  are  no 
longer  paid  and  do  not  correctly  represent  the  reduced 
wage-earning  capacity  of  the  injured  employee. 

27.  Ruling  as  to  lien  for  physician's  services,  etc. 
For  the  purpose  of  carrying  into  effect  the  provisions  of 
the  act,  the  commission  construes  that  portion  of  section 
24  thereof  which  makes  claims  for  services  or  treatment 
rendered  or  supplies  furnished  pursuant  to  section  13 
thereof  a  lien  upon  the  compensation  awarded,  to  mean  and 
apply,  only  to  claims  approved  by  the  commission,  for 
services,  treatment  or  supplies  for  which  the  employee  may 
have  incurred  liability  but  for  which  under  the  provisions 
of  such  section  the  employer  is  not  liable. 

28.  Time  for  making  periodical  payments.  All  peri- 
odical payments  for  compensation  shall  be  made  bi-weekly 
on  alternate  Mondays,  except  as  the  commission  may  other- 
wise order. 

29.  Method  of  paying  compensation.  All  insurance 
companies  issuing  policies  to  enable  an  employer  to  secure 
the  payment  of  compensation  under  subdivision  2  of  sec- 
tion 50  of  the  act  and  all  employers  who  shall  secure  the 
payment  of  such  compensation  under  subdivision  3  of  such 
section  shall  make  payment  of  the  same  to  the  commission 
in  cash  or  by  check  or  draft  drawn  upon  a  New  York  City 
bank  or  trust  company  for  each  item  of  compensation  so 
payable,  and  the  commission  shall  disburse  the  same  by  its 
own  checks  embracing  the  proper  voucher  therefor;  pro- 
vided that  any  such  insurance  company  or  employer  may 
instead,  make  and  maintain  at  all  times  with  the  Commis- 
sion such  cash  deposit  as  will,  in  the  opinion  of  the  com- 
mission, secure  the  prompt  and  convenient  payment  of 
such  compensation  and  authorize  the  commission  at  its  dis- 
cretion and  without  liability  for  the  exercise  thereof  to 
pay  out  of  such  deposit  all  compensation  awarded  by  the 
commission  to  be  paid  by  such  insurance  company  or  em- 
ployer and  engaging  to  replenish  such  deposit  promptly  on 
demand  by  replacing  all  sums  so  paid  out. 

30.  When  commuted  and  sued  for.  In  all  cases  of 
resistance  to  the  award  of  the  commission  by  refusal  or 
neglect  of  the  employer  or  the  insurance  carrier  to  pay 


184  workmen's  compensation 

compensation,  persisted  in  longer  than  ten  days,  the  com- 
mission will,  if  convinced  that  such  refusal  or  neglect  is 
without  good  cause  or  excuse,  and  in  any  case  may,  com- 
pute the  present  value  of  all  compensation  so  awarded  and 
declare  the  whole  amount  thereof  due  and  enforce  the  pay- 
ment thereof  with  the  added  penalty  of  50  per  centum  as 
provided  in  section  26  of  the  act. 

31.  Paying  present  value  into  state  fund.  The  com- 
mission will  require,  under  the  provision  of  section  27  of 
the  act,  every  insurance  company  issuing  policies  under 
subdivision  2  of  section  50  of  the  act  to  secure  the  pay- 
ment of  compensation  and  every  employer  securing  the 
payment  of  compensation  under  subdivision  3  of  section  50, 
to  transfer  to  the  state  insurance  fund  all  further  lia- 
bility under  such  awards  by  paying  amounts  equal  to 
the  present  value,  computed  by  the  commission  with  due 
regard  to  life  contingencies,  of  all  future  payments  in 
the  following  cases : 

(1)  Every  case  of  death,  involving  periodical  pay- 
ments. 

(2)  Every  case  of  total  permanent  disability. 

(3)  Every  case  of  permanent  partial  disability  con- 
sisting of  a  specific  injury  scheduled  in  subdivision  3  of 
section  15  of  this  act,  the  period  of  payment  of  compensa- 
tion for  which  exceeds  one  hundred  and  twenty-eight  weeks 
or  longer. 

(4)  Every  other  case  of  permanent  partial  disabil- 
ity, the  compensation  for  which  shall  not  be  commuted. 

(5)  Every  case  of  temporary  total  disability  or  tem- 
porary partial  disability,  regarding  which,  in  the  opinion 
of  the  commission,  good  cause  exists  why  such  should  be 
required. 

All  sums  so  paid  in  shall  be  received  and  held  in  the 
state  insurance  fund,  the  aggregate  amount  thereof  to  con- 
stitute a  trust  fund  to  provide  for  the  payment  of  all 
awards  of  compensation  of  which  the  same  were  computed 
to  be  the  commuted  values,  the  payment  of  which  out  of 
such  aggregate  trust  fund  or  otherwise  will  be  assumed 
by  the  state  fund  and  such  insurance  corporation  and  em- 
ployers shall  be  discharged  from  any  further  liability  un- 
der such  awards. 

Unless  good  cause  exist  in  the  opinion  of  the  Commis- 
sion, for  requiring  otherwise  in  a  particular  case  or  cases, 
no  disability  shall  for  the  purposes  of  this  rule  be  deemed 


RULES  OF  THE  COMMISSION  185 

finally  adjudged  permanent  and  no  order  will  be  made  to 
pay  into  the  state  fund  an  amount  equal  to  such  commuted 
value,  until  six  months  shall  have  elapsed  after  the  injury; 
but  during  such  period  of  six  months  the  compensation 
shall  be  paid  to  the  commission  and  be  disbursed  as  pro- 
vided by  section  25  of  the  act. 

32.  Methods  of  paying  compensation.  To  assure 
that  compensation  and  benefits  are  actually  paid  only  to 
injured  employees  or  their  dependents  or,  in  case  of  minor- 
ity, incompetence  or  other  legal  disability,  to  a  guardian, 
committee  or  other  person  charged  with  or  assuming  the 
burden  of  the  care  and  support  of  such  employee  or  de- 
pendent, all  payments  of  compensation  and  benefits  shall, 
at  the  discretion  of  the  commission,  be  made  in  one  of  the 
following  ways : 

(1)  By  making  the  check  of  the  commission  directly 
payable  to  the  person  entitled  to  the  compensation  and 
paying  the  same  over  to  him. 

(2)  By  drawing  a  voucher  against  the  state  treasurer 
upon  the  state  insurance  fund,  so  as  to  be  so  payable,  and 
so  paying  it  over. 

(3)  By  so  paying  such  compensation  or  benefits  in 
cash,  taking  proper  receipt  therefor,  signed  by  the  em- 
ployee, dependent,  guardian,  committee  or  other  legal  rep- 
resentative. 

(This  rule  for  the  payment  of  compensation  was  modified  and  repealed 
by  implication  by  Chapter  167  of  the  Laws  of  1915.  Section  25  of  the 
Compensation  Law  as  amended  by  this  chapter  requires  the  payment  of 
compensation  directly  by  the  employer  instead  of  through  the  commission.) 

33.  Commuted  value  demanded  of  insolvents.  In 
case  of  the  insolvency  of  an  employer  or  of  an  insurance 
carrier,  the  commission  shall  at  once  proceed  to  compute 
the  present  value  of  all  future  payments  of  compensation 
to  be  made  by  such  insolvent,  with  due  regard  to  life  con- 
tingencies, as  provided  in  Rule  No.  22  and  shall  require 
the  same  to  be  paid  into  the  state  insurance  fund  under 
the  provisions  of  section  27  of  the  act,  making  claim  for 
the  whole  of  the  same  as  a  preference  or  lien  upon  the  as- 
sets of  such  insolvent  under  the  provisions  of  section  34 
of  the  act. 

34.  Physician's  fees,  etc.,  need  not  be  insured.  The 
commission  rules  that  section  50  of  the  act  requires  the 
employer  to  insure  only  the  payment  of  compensation  as 


186  workmen's  compensation 

defined  in  subdivision  6  of  section  3  of  the  act,  i.  e.,  of 
compensation  to  employees  and  their  dependents  including 
funeral  benefits,  and  does  not  require  him  to  insure  the 
payment  of  the  cost  of  "treatment  and  care  of  injured  em- 
ployees" provided  for  by  section  13  of  the  act,  but  liability 
under  section  13  may  be  insured  at  the  option  of  the  em- 
ployer. 

35.  Policies  of  companies  must  insure  all  entitled. 
The  commission  rules  that  no  policy  of  insurance  will  be 
accepted  as  compliance  with  section  50  of  the  act,  which 
shall  not  insure  the  payment  of  compensation  to  all  per- 
sons entitled  to  compensation  under  the  act. 

36.  Condition  to  remitting  penalty  for  non-compliance. 
Penalty  for  failure  to  comply  with  the  provisions  of  section 
50  of  the  act  shall  in  no  case  be  remitted  unless  the  em- 
ployer shall  secure  in  a  manner  satisfactory  to  the  com- 
mission the  payment  of  all  compensation  as  provided  by 
the  act,  payable  because  of  accidents  to  his  employees  prior 
to  his  so  complying  or  shall  pay  into  the  state  insurance 
fund  the  present  value  thereof,  as  computed  by  the  com- 
mission as  provided  in  section  27  of  the  act. 

37.  Commission  to  supply  blanks.  The  commission 
shall  prepare  a  full  and  complete  set  of  blank  forms  as 
required  by  section  76  of  the  act  and  distribute  the  same 
or  cause  them  to  be  distributed  so  that  they  may  be  readily 
available  and  especially  to  all  employers  who  shall  have 
insured  under  the  provisions  of  section  50  of  this  act,  that 
they  may  be  able  to  keep  on  hand  a  sufficient  supply 
thereof. 

38.  Expense  accounts  of  commission.  In  view  of 
the  requirements  of  section  94  that  after  the  year  1916 
the  expense  of  administering  the  state  insurance  fund  shall 
annually  be  refunded  to  the  state  by  it  and  that  after  such 
year  also  the  expense  of  examination,  determination  and 
payment  of  claims  shall  be  apportioned  among  the  insur- 
ance carriers,  including  the  state  insurance  fund,  in  pro- 
portion to  the  compensation  paid  by  them,  and  be  refunded 
annually  to  the  state  by  them,  the  accounts  shall  be  so 
kept  during  the  years  1914,  1915  and  1916,  as  well  as 
thereafter,  in  order  that  these  various  items  of  expense 
can  be  segregated,  to  the  end  that,  when  required,  such 
segregation  may  be  made  readily  and  accurately  and  that 


RULES  OP  THE  COMMISSION  187 

the  burden  of  such  expenses  upon  the  state  during  such 
period  may  be  correctly  estimated. 

39.  Classifying  employments  of  a  single  employer. 
The  commission  will  classify  all  the  employments  of  an 
employer  when  such  are  associated,  in  one  group  under  the 
provisions  of  section  95  of  the  act  for  the  purposes  of  the 
state  insurance  fund,  under  the  provisions  of  section  96  of 
the  act  for  associations  for  accident  prevention  and  under 
the  provisions  of  section  97  of  the  act  for  purposes  of 
accounting  and  dividends ;  but  in  computing  premiums,  so 
far  as  may  be  deemed  advisable,  the  payrolls  of  the  differ- 
ent employments  shall  be  dealt  with  separately  and,  if  the 
businesses,  trades  or  employments  of  the  employer  are  dis- 
sociated and  readily  and  completely  separable,  they  may 
be  classed  each  in  its  respective  group  for  all  purposes. 

40.  How  interstate  and  foreign  commerce  employers 
may  comply.  The  commission  will  upon  application  fur- 
nish blanks  and  prescribe  methods  by  which  employers  en- 
gaged in  interstate  or  foreign  commerce  and  their  employ- 
ees working  only  in  this  state  may  by  agreement  accept 
and  become  bound  by  the  provisions  of  the  act,  so  far  as 
not  forbidden  by  any  act  of  congress,  in  like  manner  and 
with  the  same  effect  in  all  respects  as  provided  in  the  act 
for  other  employers  and  their  employees ;  and  upon  the 
execution  of  such  agreement,  the  return  to  the  commission 
of  such  blanks  duly  filled  out  and  signed  and  compliance 
with  the  methods  prescribed  by  it,  the  commission  may  ap- 
prove the  same,  upon  which  approval  it  shall  go  into  effect. 

41.  Hours  of  sessions.  The  sessions  of  the  commission 
commence  every  day  at  10.30  o'clock  a.  m.  and  continue 
with  such  intermission  or  intermissions,  if  any,  as  the  com- 
mission may  order,  until  it  shall  by  the  vote  of  a  majority 
of  the  members  present  adjourn  for  the  day. 

42.  When  physician's  bill  not  to  be  considered.  If 
an  attending  physician  shall  refuse  to  fill  out,  sign  and 
forward  the  reports  requested  by  the  commission  or  to 
itemize  his  bill  for  fees  or  verify  the  same  by  his  oath  or 
affirmation,  his  claim  for  medical  services  to  an  injured 
employee  shall  not  be  considered  for  approval  until  he  shall 
have  complied  with  such  requirement. 

43.  Employees  insured  in  state  fund.     All  policies  of 


188  workmen's  compensation 

the  state  insurance  fund  shall  be  issued  so  as  to  cover  all 
the  employees  upon  the  premises,  or  at  the  plant  or  upon 
the  business  of  the  employer  away  from  the  plant ;  premi- 
ums shall  be  computed  and  collected  upon  a  pay-roll  in- 
cluding the  salaries  or  wages  of  all  such  employees  and 
compensation  at  the  rates  provided  in  the  act  shall  be 
payable  out  of  the  state  insurance  fund,  when  and  as  such 
compensation  shall  be  awarded  by  the  commission  and  or- 
dered to  be  paid,  in  respect  of  every  employee  to  whom 
payment  of  compensation  is  so  assured. 

44.  Premiums  payable  to  state  fund.  The  policies  of 
the  state  insurance  fund  shall  continue  in  force  during 
successive  periods  of  six  months  and  the  employer  shall  be 
liable  for  the  premium  therefor  unless  such  employer,  not 
being  in  arrears  for  premiums  due  the  fund,  shall  within 
thirty  days  of  the  expiration  of  the  then  current  six 
months'  period  give  written  notice  to  the  commission  of 
his  intention  to  withdraw  and  shall  also  comply  with  sub- 
division two  or  three  of  section  50  of  the  act. 

45.  How  disbursements  from  state  fund  made.  All 
disbursements  of  compensation  by  the  state  insurance  fund 
shall  be  made  by  voucher  authorized  by  the  commission  and 
signed  by  any  two  members  thereof  and  shall  be  paid  out 
of  such  fund  by  the  state  treasurer  upon  the  presentation 
of  such  vouchers,  properly  signed,  witnessed  and  endorsed. 

46.  Monthly  session  to  consider  report  of  state  fund. 
The  commission  shall  devote  the  session  in  the  second  Wed- 
nesday of  each  month  or  so  much  of  it  and  of  as  many  other 
sessions  as  may  be  required,  to  consideration  of  a  report  of 
the  transactions  of  the  state  insurance  fund  during  the 
previous  calendar  month  and  during  the  expired  portion 
of  the  calendar  year  including  that  month  and  of  its  finan- 
cial condition,  including  its  investments  and  its  funds  in 
hand  available  for  investment ;  and  shall  make  such  orders 
concerning  the  transaction  of  the  business  of  the  state  in- 
surance fund  and  adopt  such  resolutions  concerning  the 
investment  of  its  funds  and  the  sale  of  its  securities,  in  both 
cases  subject  to  approval  by  the  comptroller,  as  it  may 
deem  advisable. 

47.  Form  of  state  fund  accounts.  The  accounts  of 
the  state  insurance  fund  shall  be  kept  so  as  to  comply 
with  all  the  requirements  of  section  97  of  the  act  and  spe- 
cifically so  as  to  enable  the  receipts  from  each  class  and 


KULES  OV  THE  COMMISSION  189 

the  disbursements,  including  reserves,  on  its  account  and 
the  amount  so  received  from  each  employer  and  the  dis- 
bursements, including  reserve  on  his  account  to  be  sepa- 
rately set  forth  in  the  books  of  account  with  a  view  to 
ascertaining  whether  a  dividend  has  been  earned  and  is 
safely  apportionable  and,  if  so,  among  which  insured  em- 
ployers of  the  class  it  should  be  apportioned. 

48.  Readjustment  of  premium  payroll  to  state  fund. 
The  readjustment  of  the  semi-annual  premium  paid  in 
advance  to  the  state  insurance  fund,  required  by  subdivi- 
sion 3  of  section  97  of  the  act,  shall  be  based  upon  the 
sworn  statement  of  the  employer  as  to  the  wage  expendi- 
ture for  such  period  of  six  months  as  required  by  section 
101  of  the  act  or  upon  an  audit  of  his  books  by  direction  of 
the  commission  as  provided  for  in  such  section  or  upon 
both  such  sworn  statements  and  such  audit,  as  the  com- 
mission may,  in  its  discretion,  require. 

49.  Time  for  paying  premiums  to  state  fund.  For 
every  employer  insuring  with  the  state  insurance  fund 
from  July  1,  1914,  the  advance  semi-annual  premium  must 
be  paid  on  or  before  such  day  as  required  by  section  98 
of  the  act  and  thereafter  semi-annually  within  ten  days 
after  the  mailing  of  the  notice  by  the  commission,  specify- 
ing the  amount  of  the  same.  For  every  other  employer 
insuring  with  the  state  insurance  fund  the  advance  semi- 
annual premium  must  be  paid  on  or  before  the  day  when 
such  insurance  is  to  go  into  force  and  thereafter  semi- 
annually within  ten  days  after  the  mailing  of  notice  by  the 
commission,  specifying  the  amount  of  the  same.  Provided 
always  that  the  commission  may,  in  its  discretion,  extend 
the  time  for  the  payment  of  any  premiums. 

50.  Repeal,  amendment  or  adoption  of  rules.  The 
rules  of  the  commission  are  subject  to  repeal  or  amend- 
ment or  to  the  adoption  of  any  new  rule  or  rules  at  any 
time  by  the  vote  of  a  majority  of  the  commissioners  pres- 
ent at  any  meeting. 

RULE  51. 
(Adopted  January  21,  1915.) 
Subrogation  to  Remedies  of  Employees. 
Subdivision  1.     Where  the  workman  entitled  to  com- 
pensation be  injured  by  the  negligence  or  wrong  of  another 
not  in  the  same  employ  elects  to  take  compensation,  such 
election  shall  be  made  by  filing  with  the  Commission  a  duly 


^^rK 


190  WOfiKMEN  S   COMPENSATION 

verified  claim  for  compensation  containing  an  assignment 
of  the  cause  of  action  against  such  other  party  to  the  State 
for  the  benefit  of  the  State  Insurance  Fund,  if  compensa- 
tion be  payable  therefrom,  and  otherwise  to  the  person  or 
association  or  corporation  liable  for  the  payment  of  such 
compensation. 

Subdivision  2.  Where  the  workman  entitled  to  compen- 
sation be  injured  by  the  negligence  or  wrong  of  another 
not  in  the  same  employ  elects  to  pursue  his  remedy  against 
such  other,  he  shall  file  with  the  Commission  a  notice  of 
election  to  pursue  his  remedy  against  such  other  upon  a 
blank  form  furnished  by  the  Commission  for  such  purpose. 
He  shall  also,  if  he  desires  to  claim  compensation  for  the 
deficiency,  if  any,  between  the  amount  of  the  recovery 
against  such  other  person  and  the  compensation  provided 
or  estimated  by  this  chapter  for  such  injuries,  or  compen- 
sation in  case  no  recovery  is  made  against  such  third 
party,  file  with  the  Commission,  at  the  same  time,  a  claim 
for  such  compensation,  if  any. 

Subdivision  3.  Where  a  workman  entitled  to  compen- 
sation under  this  chapter  be  killed  by  the  negligence  or 
wrong  of  another  not  in  the  same  employ,  his  dependents, 
if  they  elect  to  take  compensation,  shall  file  with  the  Com- 
mission a  claim  for  compensation  containing  the  assign- 
ment mentioned  in  subdivision  one  of  this  rule. 

Subdivision  4.  Where  a  workman  entitled  to  compensa- 
tion be  killed  by  the  negligence  or  wrong  of  another  not  in 
the  same  employ,  his  dependents,  if  they  elect  to  pursue 
their  remedy  against  such  other,  shall  file  with  the  Com- 
mission a  notice  of  election  to  pursue  such  remedy  against 
such  other  upon  forms  provided  by  the  Commission  for 
such  purpose.  Such  dependents  may,  if  they  desire  to 
claim  compensation  for  the  deficiency  if  any,  between  the 
amount  of  the  recovery  against  such  other  person  and  the 
compensation  provided  or  estimated  by  this  chapter  for 
such  case,  or  compensation  in  case  of  no  recovery  against 
such  other,  at  the  same  time,  file  with  the  Commission  a 
claim  for  such  compensation,  if  any. 

Subdivision  5.  Where  the  dependents  of  a  workman  en- 
titled to  compensation  under  this  chapter  in  cases  where 
such  workman  be  killed  by  the  negligence  or  wTong  of 
another  not  in  the  same  employ  are  minors  sui  juris  such 


RULES  OF  THE  COMMISSION  191 

election  to  take  compensation  and  the  assignment  of  the 
cause  of  action  against  such  other  mentioned  in  subdivision 
one  of  this  rule,  or  such  notice  of  election  to  pursue  a 
remedy  against  such  other,  shall  be  made  by  such  minor, 
and  if  not  sui  juris,  shall  be  made  on  behalf  of  such  minor 
by  his  or  her  duly  appointed  guardian,  with  permission  of 
the  court  appointing  such  guardian.  All  minors  under 
twelve  years  of  age  shall,  for  the  purposes  of  this  rule, 
be  regarded  as  not  sui  juris. 

See  Part  I,  Section  24. 

See  also  annotations  to  Section  29,  the  Workmen's  Compensation 
Law. 


ALPHABETICAL  LIST  OF 
HAZARDOUS    EMPLOYMENTS    COVERED 
BY  THE  WORKMEN'S  COMPENSA- 
TION LAW 


ALPHABETICAL  LIST  OF 
HAZARDOUS    EMPLOYMENTS    COVERED 
BY  THE  WORKMEN'S  COMPENSA- 
TION LAW. 


NOTE.  The  following  alphabetical  list  is  not  a  list 
of  hazardous  industries.  It  includes  in  many  cases  only 
the  hazardous  branches  or  occupations  of  industries.  For 
this  reason  in  some  industries  only  a  part  of  the  employ- 
ees will  come  under  the  law.  The  name  of  the  industry 
may  not  be  included  in  this  list  while  the  names  of  haz- 
ardous occupations  within  such  industry  are  included. 
In  this  connection  see  also  Part  I,  Sections  3,  6,  7,  8, 
and  10. 

( See  also  list  of  hazardous  employments  added  by  the 
Legislature  at  the  1916  session,  page  200,  post. 


Group  No. 

Employment.  in  §  2  of  Law. 

Abattoirs   30 

Acids,   corrosive,  manufacture 

of   25 

Acids,  non-corrosive,  manufac- 
ture of 28 

Adding  machines,  manufacture 

of   28 

Agricultural  implements, 

manufacture  of   24 

Alcohol,  manufacture  of 27 

Ammonia,  manufacture  of 25 

Ammunition,  manufacture  of.  25 

Anchors,  manufacture  of 21 

Artificial  ice,  manufacture  of.  25 
Artificial    stone,    manufacture 

of   42 

Asphalt,  manufacture  of  ... .  19 
Asphalted  paper,  manufacture 

of   26 

Automobiles,  manufacture  of.  24 

Baby  carriages,  toy,  manufac- 
ture of   24 

Bags,  cloth,  manufacture  of..  37 

Bags,  paper,  manufacture  of.  40 


Group  No. 
Employment.  in  §  2  of  Law. 

Bakeries     34 

Baskets,  manufacture  of 17 

Beds,  metal,  manufacture  of . .  23 

Bed  springs,  manufacture  of.  16 

Belting,   manufacture   of 32 

Bicycles,    manufacture    of....  23 

Biscuits,  manufacture  of 84 

Blankets,  manufacture  of 37 

Bleaching 39 

Boats,  small,  manufacture  of.  16 
Boilers,    installation    and   cov- 
ering of   42 

Boilers,  manufacture  of 21 

Bolts,   manufacture   of 23 

Book-binding 40 

Booming 14 

Boots,  manufacture  of 32 

Boxes,     cardboard,     manufac- 
ture of   40 

Boxes,  wooden  and  corrugat- 
ed paper,  manufacture  of . .  17 

Breweries 27 

Brick,  manufacture  of 19 

Brick-laying    42 

Bridge  construction,  steel 42 


195 


196 


WORKMEN  S  COMPENSATION 


Group  No. 
Employment.  in  §  2  of  Law. 

Bridges,    construction,    repair 

and  demolition  of 42 

Brooms,  manufacture  of 86 

Brushes,  manufacture  of   86 

Buildings,  construction,  repair 

and  demolition  of 42 

Building  construction,  steel. . .  42 

Buttons,  manufacture  of 23 

Cables,     underground,     laying 

and  repair  of 13 

Cables,  manufacture  of 21 

Caisson,  construction   11 

Calcium  carbide,  manufacture 

of  19 

Cameras,  photographic,  manu- 
facture of   23 

Candles,  manufacture  of 28 

Canning     or     preparation     of 
fruit,     vegetables,     fish     or 

food  stuffs 33 

Canoes,  manufacture  of 16 

Canvas,  manufacture  of 87 

Caps,  manufacture  of 38 

Cardboard  boxes,  manufacture 

of  40 

Cargoes,  loading  or  unloading 

of  10 

Carpentry,  structural 42 

Carpet  sweepers,  manufacture 

of  17 

Carpets,  manufacture  of   37 

Carriage  mountings,  manufac- 
ture of   23 

Carriages,  manufacture  of , . . .  24 
Carriages,  toy  baby,  manufac- 
ture of  24 

Car  shops,  railway,  operation, 

construction  and  repair  of.  3 

Car  shops,  other 4 

Cars,   operation  of,   otherwise 

than  on  tracks  41 

Cash  registers,  manufacture  of  23 

Castings,  manufacture  of 21 

Castings,    small,    manufacture 

of  23 

Cattle  foods,  manufacture  of . .  29 

Celluloid,  manufacture  of 25 

Cement,  manufacture  of 19 

Cereals,  manufacture  of 29 

Charcoal,  manufacture  of 25 

Chemical     preparations,     non- 
corrosive,  manufacture  of . .  28 

Chemicals,  manufacture  of 28 

Chemicals,    dangerous,    manu- 
facture of   26 

Cheese  boxes,  manufacture  of.  17 

Cigarettes,  manufacture  of . . .  35 


Group  No. 
Employment.  in  §  2  of  Law. 

Cigars,  manufacture  of 85 

Clay  pits  19 

Cleaning 89 

Cloth,  manufacture  of 37 

Clothing,    men's    or    women's, 

manufacture  of  38 

Coal,  cargoes  of 10 

Coffins,  manufacture  of 16 

Collars,  manufacture  of 38 

Color,  manufacture  of   26 

Compressed  air,  work  under. . .  13 
Concrete   blocks,  manufacture 

of  42 

Concrete  work 42 

Condiments,  manufacture  of..  34 

Confectionery,  manufacture  of  34 

Cordage,  manufacture  of 36 

Corrosive  acids  or  salts,  manu- 
facture of   25 

Corsets,  manufacture  of 38 

Crackers,  manufacture  of 34 

Cutlery,  manufacture  of 28 

Dangerous  chemicals,  manufac- 
ture of 26 

Decorating 42 

Dining  car  employees   1 

Distilleries  27 

Door  factories   17 

Door  screens,  manufacture  of.  17 

Dredging   11 

Drugs,  manufacture  of 28 

Dyeing    89 

Dyes,  manufacture  of 28 

Dynamos,  construction,  instal- 
lation, or  operation  of 12 

Electric  fixtures,  manufacture 

of   23 

Electric  light  lines,  construc- 
tion, installation  or  opera- 
tion   of    12 

Electric  power  lines,  construc- 
tion, installation  or  opera- 
tion of   12 

Electric    railways,    operation, 

construction  and  repair  of.  1 

Electrotyping  40 

Elevators,  installation  of 42 

Elevators,  grain,  operation  of.  29 

Embossing 40 

Engines,  installation  of 42 

Engines,    heavy,    manufacture 

of  21 

Engines,   propelled  by  steam, 

gas,  etc.,  operation  of 41 

Engines,  stationary,  operation 

of  22 


LIST  OF  HAZARDOUS  EMPLOYMENTS 


197 


Group  No. 
Employment.  In  §  2  of  Law. 

Engines,  traction,  manufacture 

of  24 

Excavation 18 

Excelsior,  manufacture  of  ... .  14 

Explosives,  manufacture  of...  25 

Express  car  employees  1 

Extracts,  manufacture  of  ... .  28 

Fabrics,  manufacture  of 87 

Felt,  manufacture  of 87 

Fertilizers,  manufacture  of...  28 

Fibre,  manufacture  of 36 

Fire  escapes,  installation  of . . .  42 

Fire-proofing,  manufacture  of  19 
Fish,  canning   or  preparation 

of  83 

Fixtures,  manufacture  of  sani- 
tary, water,  gas  or  electric.  23 

Flax  mills   37 

Food  stuffs,  canning  or  prep- 
aration of   83 

Forgings,  manufacture  of . . . .  21 
Forgings,   small,   manufacture 

of  28 

Foundries,  iron,  steel,  or  metal  21 
Freight,  cargoes  of,  handling 

of  10 

Fruit,  canning  or  preparation 

of  88 

Furnaces,  manufacture  of....  21 

Furniture,  manufacture  of. ...  16 

Furs,  manufacture  of  38 

Garbage  disposal  plants 28 

Gas  fixtures,  manufacture  of . .  28 

Gas,  manufacture  of  25 

Gasoline,  manufacture  of 25 

Glass,  manufacture  of 20 

Glass    products,    manufacture 

of  20 

Glassware,  manufacture  of . . .  20 

Gloves,  manufacture  of 82 

Glue,  manufacture  or  prepara- 
tion of   80 

Grain,  cargoes  of,  handling  of  10 

Grain  elevators,  operation  of.  29 

Gravel  pits   .' 19 

Gun  powder,  manufacture  of.  25 

Hardware,  manufacture  of . . .  28 

Harness,  manufacture  of 32 

Hats,  manufacture  of  88 

Headings,   manufacture   of . . .  14 

Heating  engineering 42 

Hemp   products,  manufacture 

of  86 

Horses,   operation   of  vehicles 

drawn   by    41 


Group  No. 
Employment.  in  S  2  of  Law. 

Hose,  rubber,  manufacture  of  82 

Hosiery,  manufacture  of 87 

Ice,  artificial,  manufacture  of  25 
Implements,    agricultural, 

manufacture  of  24 

Incline     railways,     operation, 

construction  and  repair  of.  1 
Ink,  printing,  manufacture  of  26 
Instruments,  manufacture  of.  23 
Interior    woodwork,   manufac- 
ture of  16 

Iron  foundries   21 

Iron,  manufacture  of 21 

Japans,  manufacture  of 26 

Kilns,  lime    19 

Knitting  manufactories  , 87 

Lath  mills  14 

Laundries,  power   89 

Leather   goods    and   products, 

manufacture  of  82 

Lime  kilns 19 

Liquors,    spirituous    or    malt, 

manufacture  of   27 

Lithographing 40 

Locomotives,  manufacture  of.  21 

Logging   14 

Longshore  work 10 

Lumber,  cargoes  of,  handling 

of  10 

Lumbering 14 

Machine  shops,  railways,  oper- 
ation, construction  and  re- 
pair    8 

Machine  shops,  other 4 

Machinery,  manufacture  of  . .  21 
Machinery,  heavy,  installation 

of  42 

Machines,    light,    manufacture 

of  23 

Malt  liquors,  manufacture  of.  27 
Manila  products,  manufacture 

of 86 

Marble  works 42 

Mason  work   42 

Mattresses,  manufacture  of. . .  16 
Meat    products,    manufacture 

or  preparation  of  80 

Meats,  manufacture  or  prepar- 
ation of 80 

Medicines,  manufacture  of. . .  28 
Merchandise,  cargoes  of,  han- 
dling of  10 


198 


WORKMEN  S  COMPENSATION 


Employment. 


Group  No. 
in  §  2  of  Law. 


Employment. 


Group  No. 
in  §  2  of  Law. 


Metal,  structural,  manufacture 

of  21 

Metal  beds,  manufacture  of. .  28 

Metal  foundries  21 

Metal  toys,  manufacture  of . . .  23 

Metal  wares,  manufacture  of . .  23 

Metals,  preparation  of 18 

Millings    29 

Mineral     water,    manufacture 

of  27 

Minerals,  preparation  of 18 

Mining    18 

Motor  trucks,  manufacture  of  24 

Mouldings,  manufacture  of. . .  17 
Mules,    operation    of    vehicles 

drawn  by 41 

Nails,  manufacture  of 23 

Oil,  manufacture  of 26 

Ore,  cargoes  of,  handling  of . .  10 

Ores,  reduction  of 18 

Organs,   manufacture    of 16 

Packing  houses   80 

Paint,   manufacture   of 26 

Painting 42 

Paper     boxes,     corrugated, 

manufacture  of   17 

Paper,  manufacture  of  40 

Paper,  tarred,  pitched  or  as- 
phalted, manufacture  of . . . .  26 

Paper  mills  16 

Parlor  car  employees 1 

Paving 18 

Paving  blocks,  manufacture  of  19 
Paving  material,  manufacture 

of  19 

Perfumes,  manufacture  of....  28 
Petroleum,  manufacture  of . . .  26 
Petroleum  products,  manufac- 
ture of  25 

Pharmaceutical     preparations, 

manufacture  of  28 

Photo-engraving    40 

Photographic      cameras      and 

supplies,  manufacture  of  . .  23 

Piano  actions,  manufacture  of  16 

Pianos,  manufacture  of 16 

Pickle  factories   33 

Pile  driving 11 

Pipes,  installation  and  covering 

of  42 

Pipes,   laying    and   repair   of, 

underground  18 

Pipes,  manufacture  of 21 

Pitched  paper,  manufacture  of  26 

Pits,  sand,  shale,  clay  or  gravel  19 


Planing  mills   17 

Plastering    42 

Plumbing   42 

Porcelain,  manufacture  of 20 

Pottery,  manufacture  of 20 

Powder,  gun,  manufacture  of.  25 
Power   plants,    railway,   oper- 
ation,   construction    and   re- 
pair   of    3 

Power  plants,  other    4 

Power,  transmission  lines,  con- 
struction,     installation      or 

operation  of   12 

Printers'   rollers,  manufacture 

of  26 

Printing  40 

Printing  ink,  manufacture  of . .  26 

Pulp  mills   15 

Quarries ^ 19 

Rafting    14 

Rails,  manufacture  of 21 

Railway  car  shops,  machine 
shops,  steam  and  power 
plants,  operation,  construc- 
tion and  repair   8 

ailways,  operation,  construc- 
tion and  repair  of,  whether 
operated  by  steam,  electric 
or  other  motive  power,  in- 
cluding street  railways  and 

incline  railways    1,  2 

Rattan  ware,  manufacture  of  16 

Reduction  of  ores    18 

Refineries,  sugar  88 

Renovating    42 

River-driving   14 

Robes,  manufacture  of   88 

Rollers,     when    propelled     by 

steam,  gas,  etc.,  operation  of  41 

Rolling  mills    21 

Roofing 42 

Ropes,  manufacture  of  86 

Rubber  goods,  manufacture  of  32 

Rubber  shoes,  manufacture  of  82 

Saddlery,  manufacture  of   . . .  82 

Safes,  manufacture  of   31 

Salts,    corrosive,    manufacture 

of  26 

Sand  pits  19 

Sanitary  engineering  42 

Sanitary  fixtures,  manufacture 

of 28 

Sash   and  door   factories 17 

Saw   mills    14 


LIST  OF  HAZARDOUS  EMPLOYMENTS 


199 


Group  No. 
Employment.  In  §  2  of  Law. 

Screens,  manufacture  of 23 

Screens,     window     and     door, 

manufacture  of  17 

Sewer  construction 18 

Shades,   window,  manufacture 

of  17 

Shaft  sinking 18 

Shafting,  manufacture  of....  21 

Shale  pits    19 

Sheet  metal,  manufacture  of..  21 
Sheet   metal   products,   manu- 
facture of   28 

Sheet  metal  work    42 

Shingle   mills    14 

Shipbuilding,  construction  and 
repair  in  a  ship-yard  or  else- 
where (e/.  vessels)   9 

Shirts,  manufacture  of  38 

Shoddy,  manufacture  of 37 

Shoe  blacking  or  polish,  manu- 
facture of   28 

Shoes,  manufacture  of   82 

Sleeping  car  employees    1 

Sleighs,  manufacture  of 24 

Sleighs,  toy,  manufacture  of . .  24 

Smelting  18 

Soaps,  manufacture  of 28 

Soda  waters,  manufacture  of.  27 

Spinning  manufactories 37 

Spices,  manufacture  of 34 

Spirituous  liquors,  manufac- 
ture of   27 

Spokes,  manufacture  of   14 

Stationary  engines  and  boilers, 

operation  and  repair  of . . . .  22 

Stationery,    manufacture   of . .  40 

Staves,  manufacture  of 14 

Steam  and  power  plants,  oper- 
ation, construction  and  re- 
pair of 8,  4 

Steam  railways,  operation,  con- 
struction and  repair  of 1 

Steel  building  and  bridge  con- 
struction    42 

Steel   foundries    21 

Steel,  structural,  manufacture 

of 21 

Stereotyping  40 

Stone  cutting  or  dressing 42 

Stone,    artificial,    manufacture 

of  42 

Stone-setting 42 

Storage  29 

Storage,  place,  longshore  work 

in   10 

Stoves,  manufacture  of 21 

Street  railways,  operation,  con- 
struction and  repair  of 1 


Group  No. 
Employment.  in  §  2  of  Law. 

Structural  carpentry  42 

Structural  steel,   manufacture 

of  21 

Subaqueous  construction 11 

Subway  construction  18 

Sugar  refineries  88 

Tanneries 81 

Tar,  manufacture  of 26 

Tarred  paper,  manufacture  of  26 
Telegraph     lines     and     wires, 
operation,   construction   and 

repair  of 6,  7 

Telephone     lines     and     wires, 
operation,   construction   and 

repair  of 6,  7 

Terra-cotta,  manufacture  of . .  19 

Textiles,  manufacture  of   87 

Thread,  manufacture  of 87 

Threshing  machines,  manufac- 
ture of  24 

TUe,  manufacture  of 19 

Tile-laying 42 

Tires,  rubber,  manufacture  of.  32 

Tobacco,  manufacture  of 35 

Tobacco     products,    manufac- 
ture of  35 

Toilet  preparations,  manufac- 
ture of  28 

Tools,  manufacture  of 23 

Toy   wagons,   sleighs  or  baby 

carriages,  manufacture  of . .  24 

Toys,  manufacture  of  metal . .  23 

Toys,  manufacture  of  wooden.  17 
Traction  engines,  manufacture 

of  24 

Trucks,  operation  of  41 

Trunks,  manufacture  of 32 

Tubing,  manufacture  of 21 

Tubing,    rubber,    manufacture 

of  32 

Tunneling 18 

Turpentine,  manufacture  of . . .  26 

Typewriters,  manufacture  of.  23 

Umbrellas,  manufacture  of . . .  32 

Upholstering 16 

Utensils,  manufacture  of 28 

Valises,  manufacture  of 82 

Varnish,  manufacture  of  ... .  26 
Vegetables,  canning  or  prepar- 
ation of  33 

Vehicles,  manufacture  of  ... .  24 

Vehicles,  operation  of 41 

Veneer,  manufacture  of 14 

Vessels,  operation  and  repair 

of  8 


200 


workmen's  compensation 


Employment. 


Group  No. 
in  §  2  of  Law. 


Wagons,  manufacture  of 24 

Wagons,  toy,  manufacture  of.  24 

Wagons,  operation  of   41 

Wall-paper,  manufacture  of  .  •  40 

Warehouse,  longshore  work  in  10 

Warehousing 29 

Water  fixtures,  manufacture  of  23 

Waters,  manufacture  of  soda  27 

Weaving  manufactories    87 

Well  digging 13 

White  wear,  manufacture  of  . .  88 

Wicker  ware,  manufacture  of  16 
Window  screens,  manufacture 

of 17 


Employment. 


Group  No. 
in  §  2  of  Law. 


Window   shades,   manufacture 

of  17 

Wine,  manufacture  of 27 

Wire  goods,  manufacture  of..  23 
Wires,     underground,     laying 

and   repair    13 

Wires,  manufacture  of  21 

Wooden  boxes,  manufacture  of  17 
Wooden     toys,     articles     and 

wares,  manufacture  of   17 

Woodwork,  interior,  manufac- 
ture of  16 

Yarn,  manufacture  of 87 


ALPHABETICAL  LIST   OF   HAZARDOUS  EMPLOYMENTS 
ADDED  BY  CHAPTER  622,  LAWS  OF  1916, 
EFFECTIVE  JUNE  1,  1916. 


Apticles    of    bone,    ivory    and 

shell 28 

Articles  from' textiles  and  fab- 
rics      88 

Asbestos 19 

Ashes  removal  18 

Bark  mills 14 

Barrels,  manufacture   of 14 

Blacksmiths    24 

Boarding  stables  41 

Bone  articles,  manufacture  of  23 

Bottling  27 

Cork  cutting 17 

Curb  construction  or  repair. .  13 

Dairy    products,    manufacture 

of  88 

Elevators  22 

Engraving  40 

Fabrics,  articles  from,  manu- 
facture of  88 

Films,  manufacture  of  40 

Freight  elevators,  operation  of  22 

Furriers  82 

Garage   41 

Garbage,  removal  18 

Gas  wells 18 

Gelatine,  manufacture  of 80 

Glazing 42 

Gold  ware,  manufacture  of. .  23 

Heating   22 

Horseshoers    24 

Ice  distribution   26 

Ice  harvesting   25 


Ice  storage   25 

Ink,  manufacture  of 26 

Ivory  articles,  manufacture  of  23 

Jewelry,  manufacture  of 23 

Junk   dealers    42 

Kegs,  manufacture  of 14 

Lighting 22 

Livery  stables 41 

Lumber  yards 14 

Machine  shops,  inc.  repairs  . .  21 

Marine   wrecking    8 

Meat  markets  80 

Movers  of  all  kinds  41 

Moving   picture    machines, 

manufacture  of   40 

Municipalities,   any   hazardous 

employments  carried  on  by  43 

Oil  weUs 18 

Papering    42 

Passenger  elevators,  operation 

of  22 

Paste,  manufacture  of 80 

Picture  hanging 42 

Plate  ware,  manufacture  of. .  28 

Public  garages  41 

Repair  of. 

Railways    2 

Telephone  &  telegraph  lines  7 
Electric    light    power    lines, 
dynamos  or  appliances  and 

transmission  lines   12 

Sewers,  subways   18 

Steel  building.s,  elevators. ...  42 


LIST  OF   HAZARDOUS  EMPLOYMENTS 


201 


Group  No. 
Employment.  in  §  2  of  Law. 

Subaqueous  construction. ...  11 

Caisson  construction 11 

Road  building  or  repair 13 

Sales  stables  41 

Salvage  of  buildings  and  con- 
tents      42 

Sanitary   lighting,    installation 

or  repair   42 

Screws,  manufacture  of 23 

Sewerage  disposal  plants 28 

Shell  articles,  manufacture  of  23 
Sidewalk   construction   or   re- 
pair    13 

Silver  ware,  manufacture  of. .  23 

Snow  removal 13 

Stables    41 


Group  No. 
Employment.  in  S  2  of  Law. 

State,  any  hazardous  employ- 
ments carried  on  by   43 

Stone  crushing  or  grinding  ...  19 

Storage  for  hire 29 

Storage  of  all  kinds 29 

Street  cleaning    13 

Structures,    construction,    re- 
pair and  demolition 42 

Textiles,  articles  from,  manu- 
facture of  88 

Tubs,  manufacture  of  14 

Vats,  manufacture  of 14 

Waterwork,  operation  of 13 

Wax,  manufacture  of 30 

Window  cleaning   22 


APPENDIX 

Employers'  Liability  Act  and  Elective  Compensa- 
tion Law. 

Sec.  64  of  the  Railroad  Law — Injuries  to  railroad 
employees. 

Art.  1,  Sec.  19,  State  Constitution — authorizing 
THE  Compensation  Law. 

Art.  1,  Sec.  18,  State  Constitution — relating  to 

DEATH  cases. 

Sec.  1902,  Code  of  Civil  Procedure — relating  to 

death  cases. 
Federal  Employers'  Liability  Act. 


EMPLOYERS^    LIABILITY    ACT    AND 
ELECTIVE  COMPENSATION  LAW. 

The  Labor  Law. 

Chapter  31  of  the  Consolidated  Laws. 

Article  14. 

Note:  The  provisions  of  Section  200  to  204  in- 
clusive of  this  article  of  the  Labor  Law  have  no  appli- 
cation to  the  employments  enumerated  in  Section  2  of 
the  Workmen's  Compensation  Law,  as  to  any  accident 
occurring  since  July  1,  1914. 

Sections  205  to  212  inclusive  comprise  the  Elective 
Compensation  Statute.  These  sections  have  no  applica- 
tion except  to  the  employments  which  are  omitted  from 
Section  2  of  the  Workmen's  Compensation  Law,  and  so 
far  as  is  consistent  therewith  are  superseded  by  the 
elective  provisions  added  to  the  compensation  law  in 
1916. 

Section  200.     Employer's  liability  for  injuries. 

201.  Notice  to  be  served. 

202.  Assumption  of  risks;   contributory  negli- 

gence, when  a  question  of  fact. 
202-a.     Trial;  burden  of  proof. 

203.  Defense ;  insurance  fund. 

204.  Existing  rights  of  action  continued. 

205.  Consent  by  employer  and  employee  to  com- 

pensation plan. 

206.  Liability  to  pay  compensation;  notice  of 
accident. 

207.  Amount  of  compensation ;  persons  entitled ; 

physical  examination. 

208.  Settlement  of  disputes. 

209.  Preferential  claim;  not  assignable  or  sub- 

ject to  attachment;  attorney's  fee. 

210.  Cancellation  of  consent. 

211.  Reports  of  compensation  plan. 

212.  Reports  by  employer. 

206 


206  workmen's  compensation 

§  200.  Employer's  liability  for  injuries.  When  per- 
sonal injury  is  caused  to  an  employee  who  is  himself  in  the 
exercise  of  due  care  and  diligence  at  the  time : 

1.  By  reason  of  any  defect  in  the  condition  of  the  ways, 
works,  machinery,  or  plant,  connected  with  or  used  in  the 
business  of  the  employer  which  arose  from  or  had  not 
been  discovered  or  remedied  owing  to  the  negligence  of  the 
employer  or  of  any  person  in  the  service  of  the  employer 
and  intrusted  by  him  with  the  duty  of  seeing  that  the  ways, 
works,  machinery,  or  plant,  were  in  proper  condition. 
(Subd.  1  am'd  by  L.  1910,  Ch.  352.) 

2.  By  reason  of  the  negligence  of  any  person  in  the 
service  of  the  employer  intrusted  with  any  superintendence 
or  by  reason  of  the  negligence  of  any  person  intrusted  with 
authority  to  direct,  control  or  command  any  employee  in 
the  performance  of  the  duty  of  such  employee.  The  em- 
ployee, or  in  case  the  injury  results  in  death,  the  executor 
or  administrator  of  a  deceased  employee  who  has  left  him 
surviving  a  husband,  wife  or  next  of  kin,  shall  have  the 
same  right  of  compensation  and  remedies  against  the  em- 
ployer as  if  the  employee  had  not  been  an  employee  of  nor 
in  the  service  of  the  employer  nor  engaged  in  his  work. 
The  provisions  of  law  relating  to  actions  for  causing  death 
by  negligence,  so  far  as  the  same  are  consistent  with  this 
act,  shall  apply  to  an  action  brought  by  an  executor  or 
administrator  of  a  deceased  employee,  suing  under  the 
provisions  of  this  article.  If  an  employer  enters  into  a 
contract,  written  or  verbal,  with  an  independent  contrac- 
tor to  do  part  of  such  employer's  work,  or  if  such  contrac- 
tor enters  into  a  contract  with  a  subcontractor  to  do  all  or 
any  part  of  the  work  comprised  in  such  contractor's  con- 
tract with  the  employer,  such  contract  or  subcontract  shall 
not  bar  the  liability  of  the  employer  for  the  injuries  to 
the  employees  of  such  contractor  or  subcontractor,  caused 
by  any  defect  in  the  condition  of  the  ways,  works,  machin- 
ery, or  plant,  if  they  are  the  property  of  the  employer  or 
arc  furnished  by  him,  and  if  such  defect  arose,  or  had  not 
been  discovered  or  remedied,  through  the  negligence  of  the 
employer,  or  of  some  person  intrusted  by  him  with  the  duty 
of  seeing  that  they  were  in  proper  condition.  (Sub.  2 
am'd  by  L.  1910,  Ch.  352.) 


EMPLOYERS    LIABILITY   ACT  207 

For  definition  of  the  word  "plant,"  see 

Wiley  vs.  Solvay  Process  Company,  215  N.  Y.  584. 

Lipstein  vs.  Provident  Loan  Society,  154  App.  Div.  732. 

Fresusk  vs.  Pittsburg  Contracting  Co.,  159  App.  Div. 
356. 

Kenz  vs.  Bernheimer  Sf  Schwartz  Pils.  Brewing  Co.,  162 
App.  Div.  777. 

Drury  vs.  American  Fruit  Product  Co.,  163  App.  Div. 
509. 

For  the  responsihility  of  the  owner  for  the  safety  of 
an  employee  of  a  contractor,  see 

Kenz  vs.  B.  (§•  S.  Pilsner  Brewing  Co.,  162  App.  Div. 

777. 

§  201.  Notice  to  be  served.  No  action  for  recovery 
of  compensation  for  injury  or  death  under  this  article 
shall  be  maintained  unless  notice  of  the  time,  place  and 
cause  of  the  injury  is  given  to  the  employer  within  one 
hundred  and  twenty  days  and  the  action  is  commenced 
within  one  year  after  the  occurrence  of  the  accident  caus- 
ing the  injury  or  death.  The  notice  required  by  this  sec- 
tion shall  be  in  writing  and  signed  by  the  person  injured  or 
by  some  one  in  his  behalf,  but  if  from  physical  or  mental 
incapacity  it  is  impossible  for  the  person  injured  to  give 
notice  within  the  time  provided  in  this  section,  he  may  give 
the  same  within  ten  days  after  such  incapacity  is  removed. 
In  case  of  his  death  without  having  given  such  notice,  his 
executor  or  administrator  may  give  such  notice  within  sixty 
days  after  his  appointment,  but  no  notice  under  the  pro- 
visions of  this  section  shall  be  deemed  to  be  invalid  or  in- 
sufficient solely  by  reason  of  any  inaccuracy  in  stating  the 
time,  place  or  cause  of  the  injury  if  it  be  shown  that  there 
was  no  intention  to  mislead  and  that  the  party  entitled  to 
notice  was  not  in  fact  misled  thereby.  If  such  notice  does 
not  apprise  the  employer  of  the  time,  place  or  cause  of  in- 
jury, he  may,  within  eight  days  after  service  thereof,  serve 
upon  the  sender  a  written  demand  for  a  further  notice, 
which  demand  must  specify  the  particular  in  which  the  first 
notice  is  claimed  to  be  defective,  and  a  failure  by  the  em- 
ployer to  make  such  demand  as  herein  provided  shall  be  a 
waiver  of  all  defects  that  the  notice  may  contain.  After 
service  of  such  demand  as  herein  provided,  the  sender  of 
such  notice  may  at  any  time  within  eight  days  thereafter 


208  woekmen's  compensation 

serve  an  amended  notice  which  shall  supersede  such  first 
notice  and  have  the  same  effect  as  an  original  notice  here- 
under. The  notice  required  by  this  section  shall  be  served 
on  the  employer,  or  if  there  is  more  than  one  employer, 
upon  one  of  such  employers,  and  may  be  served  by  deliv- 
ering the  same  to  or  at  the  residence  or  place  of  business 
of  the  person  on  whom  it  is  to  be  served.  The  notice  or 
demand  may  be  served  by  post  by  letter  addressed  to  the 
person  on  whom  it  is  to  be  served,  at  his  last  known  place 
of  residence  or  place  of  business,  and  if  served  by  post 
shall  be  deemed  to  have  been  served  at  the  time  when  the 
letter  containing  the  same  would  be  delivered  in  the  ordi- 
nary course  of  the  post.  When  the  employer  is  a  corpora- 
tion, notice  shall  be  served  by  delivering  the  same  or  by 
sending  it  by  post  addressed  to  the  office  or  principal  place 
of  business  of  such  corporation.  (As  am'd  by  L.  1910,  Ch. 
352.) 
In  the  notice  to  serve  pursuant  to  this  section  the  acci- 
dent should  be  so  identified  that  the  master's  attention  is 
called  to  the  exact  occurrence. 

Logerto  vs.  Central  Building  Co.,  198  N.  Y.  390. 

If  the  notice  is  defective,  the  case  will  be  treated  as  a 
common  law  action  and  not  within  the  Employers'  Lia- 
bility Act. 

Jackson  vs.  Green,  201  N.  Y.  76. 

For  other  cases  upon  the  sufficiency  of  the  notice,  see 
Bertolami  vs.  U.  N.  Sc  C.  Co.,  198  N.  Y.  71. 
HurleT/  vs.  Alcott,  198  N.  Y.  132. 

Rodzhorski  vs.  American  Sugar  Refining  Co.,  210  N.  Y. 
262. 

For  liability  where  notice  under  this  section  is  waived, 
see 

Dailey  vs.  Stoll,  211  N.  Y.  74. 

§  202.  Assumption  of  risks ;  contributory  negligence, 
when  a  question  of  fact.  An  employee  by  entering  upon 
or  continuing  in  the  service  of  the  employer  shall  be  pre- 
sumed to  have  assented  to  the  necessary  risks  of  the  occu- 
pation or  employment  and  no  others.  The  necessary  risks 
of  the  occupation  or  employment  shall,  in  all  cases  arising 
after  this  article  takes  effect,  be  considered  as  including 
those  risks,  and  those  only,  inherent  in  the  nature  of  the 
business  which  remain  after  the  employer  has  exercised 


EMPLOYERS   lilABILITY   ACT  209 

due  care  in  providing  for  the  safety  of  his  employees,  and 
has  complied  with  the  laws  affecting  or  regulating  such 
business  or  occupation  for  the  greater  safety  of  such  em- 
ployees. In  an  action  brought  to  recover  damages  for 
personal  injury  or  for  death  resulting  therefrom  received 
after  this  act  takes  effect,  owing  to  any  cause,  including 
open  and  visible  defects,  for  which  the  employer  would  be 
liable  but  for  the  hitherto  available  defense  of  assumption 
of  risk  by  the  employee,  the  fact  that  the  employee  con- 
tinued in  the  service  of  the  employer  in  the  same  place  and 
course  of  employment  after  the  discovery  by  such  employee, 
or  after  he  had  been  informed  of  the  danger  of  personal  in- 
jury therefrom  shall  not  be,  as  matter  of  fact  or  as  matter 
of  law,  an  assumption  of  the  risk  of  injury  therefrom,  but 
an  employee,  or  his  legal  representative,  shall  not  be  en- 
titled under  this  article  to  any  right  of  compensation  or 
remedy  against  the  employer  in  any  case  where  such  em- 
ployee knew  of  the  defect  or  negligence  which  caused  the  in- 
jury and  failed,  within  a  reasonable  time,  to  give,  or  cause 
to  be  given,  information  thereof  to  the  employer,  or  to 
some  person  superior  to  himself  in  the  service  of  the  em- 
ployer, or  who  had  intrusted  to  him  some  superintendence, 
unless  it  shall  appear  on  the  trial  that  such  defect  or 
negligence  was  known  to  such  employer,  or  superior  per- 
son, prior  to  such  injuries  to  the  employee;  or  unless  such 
defect  could  have  been  discovered  by  such  employer  by 
reasonable  and  proper  care,  tests  or  inspection.  (As 
am'd  by  L.  1910,  Ch.  352.) 
Assumption  of  risk  by  the  employee  is  made  a  ques- 
tion of  fact  by  this  section  and  in  an  action  brought  un- 
der the  Employers'  Liability  Act  the  plaintiff  cannot  be 
said  to  have  assumed  the  risk  of  the  accident  as  a  matter 
of  law. 

Clarh  vs.  N.  Y.  Central  <§•  Hudson  R.  R.  R.  Co.,  191 
N.  Y.  416. 

The  rule  established  by  this  section  in  relation  to  the 
assumption  of  risk  does  not  apply  to  an  action  brought 
against  an  employer  under  common  law  principles. 
Colleri  vs.  Turner,  215  N.  Y.  Memo.  675. 

§  202-a.  Trial ;  burden  of  proof.  On  the  trial  of  any 
action  brought  by  an  employee  or  his  personal  representa- 
tive to  recover  damages  for  negligence  arising  out  of  and 


210  workmen's  compensation 

in  the  course  of  such  employment,  contributory  negligence 
of  the  injured  employee  shall  be  a  defense  to  be  so  pleaded 
and  proved  by  the  defendant.     (Added  by  L.  1910,  Ch. 
352.) 
The  rule  as  to  contributory  negligence  as  established 
by  this  section  applies  to  all  cases  arising  under  the  La- 
bor Law  as  well  as  to  cases  arising  under  Article  14. 
Hubbell  vs.  Pioneer  Paper  Co.,  160  App.  Div.  356. 
§  203.     Defense ;  insurance  fund.     An    employer    who 
shall  have  contributed  to  an  insurance  fund  created  and 
maintained  for  the  mutual  purpose  of  indemnifying  an  em- 
ployee for  personal  injuries,  for  which  compensation  may 
be  recovered  under  this  article,  or  to  any  relief  society  or 
benefit  fund  created  under  the  laws  of  this  state,  may  prove 
in  mitigation  of  damages  recoverable  by  an  employee  under 
this  article  such  proportion  of  the  pecuniary  benefit  which 
has  been  received  by  such  employee  from  such  fund  or 
society  on  account  of  such  contribution  of  the  employer,  as 
the  contribution  of  such  employer  to  such  fund  or  society 
bears  to  the  whole  contribution  thereto. 
An  employee  may  release  an  employer  from  liability 
in  consideration  of  benefits  from  a  relief  fund. 

Coleisi  vs.  Pennsylvania  R.  R.  Co.,  208  N.  Y.  275. 
But  this  does  not  relate  to  a  release  from  payment  of 
compensation,  in  connection  with  which  see  Sections  30, 
31  and  32  of  the  Workmen's  Compensation  Law. 

§  204.  Existing  rights  of  action  continued.  Every  ex- 
isting right  of  action  for  negligence  or  to  recover  damages 
for  injuries  resulting  in  death  is  continued  and  nothing  in 
this  article  contained  shall  be  construed  as  limiting  any 
such  right  of  action,  nor  shall  the  failure  to  give  the  notice 
provided  for  in  section  two  hundred  and  one  of  this  article 
be  a  bar  to  the  maintenance  of  a  suit  upon  any  such  exist- 
ing right  of  action. 

§  205.  Consent  by  employer  and  employee  to  compen- 
sation plan.  When  and  if  any  employer  in  this  state  and 
any  of  his  employees  shall  consent  to  the  compensation 
plan  described  in  sections  two  hundred  and  six  to  two  hun- 
dred and  twelve,  inclusive,  of  this  article,  hereinafter  re- 
ferred to  as  the  plan,  and  shall  signify  their  consent  there- 
to in  writing  signed  by  each  of  them  or  their  authorized 
agents,  and  acknowledged  in  the  manner  prescribed  by  law 
or  taking  the  acknowledgment  of  a  conveyance  of  real 


EMPLOYERS    LIABILITY   ACT  211 

property,  and  such  writing  is  filed  with  the  county  clerk  of 
the  county  in  which  it  is  signed  by  the  employee,  then  so 
long  as  such  consent  has  not  expired  or  been  canceled  as 
hereinafter  provided,  such  employee,  or  in  case  injury  to 
him  results  in  death,  his  executor  or  administrator,  shall 
have  no  other  right  of  action  against  the  employer  for  per- 
sonal injury  or  death  of  any  kind,  under  any  statute  or  at 
common  law,  save  under  the  plan  so  consented  to,  except 
where  personal  injury  to  the  employee  is  caused  in  whole 
or  in  part  by  the  failure  of  the  employer  to  obey  a  valid 
order  made  by  the  commissioner  of  labor  or  other  public 
authority  authorized  to  require  the  employer  to  safeguard 
his  employees,  or  where  such  injury  is  caused  by  the  seri- 
ous or  wilful  misconduct  of  the  employer.  In  such  ex- 
cepted cases  thus  described,  no  right  of  action  which  the 
employee  has  at  common  law  or  by  any  other  statute  shall 
be  affected  or  lost  by  his  consent  to  the  plan,  if  such  em- 
ployee, or  in  case  of  death  his  executor  or  administrator, 
commences  such  action  before  accepting  any  benefit  under 
such  plan  or  giving  any  notice  of  injury  as  provided  in 
section  two  hundred  and  six  hereof.  The  commencing  of 
any  legal  action  whatsoever  at  common  law  or  by  any 
statute  against  the  employer  on  account  of  such  injury, 
except  under  the  plan,  shall  bar  the  employee,  and  in  the 
event  of  his  death  his  executors,  administrators,  dependents 
and  other  beneficiaries,  from  all  benefit  under  the  plan. 
This  section  and  sections  two  hundred  and  six  to  two  hun- 
dred and  twelve,  inclusive,  of  this  article  shall  not  apply 
to  a  railroad  corporation,  foreign  or  domestic,  doing  busi- 
ness in  this  state,  or  a  receiver  thereof,  or  to  any  person 
employed  by  such  corporation  or  receiver.  (Added  by  L. 
1910,  Ch.  352.) 

§  206.  Liability  to  pay  compensation ;  notice  of  acci- 
dent. If  personal  injury  by  accident  arising  out  of  and  in 
the  course  of  the  employment  is  caused  to  the  employee,  the 
employer  shall,  subject  as  hereinafter  mentioned,  be  liable 
to  pay  compensation  under  the  plan  at  the  rates  set  out 
in  section  two  hundred  and  seven  of  this  article ;  provided 
that  the  employer  shall  not  be  liable  in  respect  of  any  in- 
jury which  does  not  disable  the  employee  for  a  period  of  at 
least  two  weeks  from  earning  full  wages  at  the  work  at 
which  he  was  employed,  and  that  the  employer  shall  not  be 
liable  in  respect  of  any  injury  to  the  employee  which  is 
caused  by  the  serious  and  wilful  misconduct  of  that  em- 


212  workmen's  compensation 

ployee.  No  proceedings  for  recovery  under  the  plan  pro- 
vided hereby  shall  be  maintained  unless  notice  of  the  acci- 
dent has  been  given  to  the  employer  as  soon  as  practicable 
after  the  happening  thereof  and  before  the  employee  has 
voluntarily  left  the  employment  in  which  he  was  injured 
and  during  such  disability,  and  unless  claim  for  compensa- 
tion with  respect  to  the  accident  has  been  made  within  six 
months  from  the  occurrence  of  the  accident,  or  in  the  case 
of  death  of  the  employee,  or  in  the  event  of  his  physical 
or  mental  incapacity  within  six  months  after  such  death  or 
removal  of  such  physical  or  mental  incapacity,  or  in  the 
event  that  weekly  payments  have  been  made  under  the  plan, 
within  six  months  after  such  payments  have  ceased ;  but  no 
want  of  or  defect  or  inaccuracy  of  a  notice  shall  be  a  bar 
to  the  maintenance  of  proceedings  under  the  plan  unless 
the  employer  proves  that  he  is  prejudiced  by  said  want, 
defect  or  inaccuracy.  Notice  of  the  accident  shall  apprise 
the  employer  of  the  claim  for  compensation  under  this  plan 
and  shall  state  the  name  and  address  of  the  employee  in- 
jured, the  date  apd  place  of  the  accident  and  in  simple  lan- 
guage the  cause  thereof.  The  notice  may  be  served  per- 
sonally or  by  sending  it  by  mail  in  a  registered  letter  ad- 
dressed to  the  employer  at  his  last  known  residence  or  place 
of  business.    (Added  by  L.  1910,  Ch.  352.) 

§  207.  Amount  of  compensation ;  persons  entitled ; 
physical  examination.  The  amount  of  compensation  un- 
der the  plan  shall  be:  1.  In  case  death  results  from  injury: 

(a)  If  the  employee  leaves  a  widow  or  next  of  kin  at 
the  time  of  his  death  wholly  dependent  on  his  earnings,  a 
sum  equal  to  twelve  hundred  times  the  daily  earnings  of  the 
employee  at  the  rate  at  which  he  was  being  paid  by  the 
employer  at  the  time  of  the  accident,  but  not  more  in  any 
event  than  three  thousand  dollars.  Any  weekly  payments 
previously  made  under  the  plan  shall  be  deducted  in  ascer- 
taining such  amount  payable  on  death. 

(b)  If  such  widow  or  next  of  kin  or  any  of  them  are 
in  part  only  dependent  upon  his  earnings,  such  sum  not 
exceeding  that  provided  in  subdivision  a  as  may  be  de- 
termined to  be  reasonable  and  proportionate  to  the  in- 
jury to  such  dependents. 

(c)  If  he  leaves  no  widow,  or  next  of  kin  so  dependent 
in  whole  or  in  part,  the  reasonable  expenses  of  his  medical 
attendance  and  burial,  not  exceeding  one  hundred  dollars. 
Whatever  sum  may  be  determined  to  be  payable  under  the 


EMPLOYEES   LIABILITY  ACT  218 

plan,  in  case  of  death  of  the  injured  employee,  shall  be 
paid  to  his  legal  representative  for  the  benefit  of  such  de- 
pendents, or  if  he  leaves  no  such  dependents,  for  the  bene- 
fit of  the  person  to  whom  the  expenses  of  medical  attend- 
ance and  burial  are  due. 

2.  Where  total  or  partial  incapacity  for  work  at  any 
gainful  employment  results  to  the  employee  from  the  in- 
jury, a  weekly  pa3'ment  commencing  at  the  end  of  the 
second  week  after  the  injury  and  continuing  during  inca- 
pacity, subject  as  herein  provided,  not  exceeding  fifty  per 
centum  of  his  average  weekly  earnings  when  at  work  on 
full  time  during  the  preceding  year  during  which  he  shall 
have  been  in  the  employment  of  the  same  employer,  or  if  he 
shall  have  been  employed  less  than  a  year,  then  a  weekly 
payment  of  not  exceeding  three  times  the  average  daily 
earnings  on  full  time  for  such  less  period. 

In  fixing  the  amount  of  the  weekly  payment,  regard  shall 
be  had  to  any  payment,  allowance  or  benefit  which  the 
workman  may  have  received  from  the  employer  during  the 
period  of  his  incapacity,  and  in  the  case  of  partial  inca- 
pacity the  weekly  payment  shall  in  no  case  exceed  the  dif- 
jference  between  the  amount  of  the  average  weekly  earn- 
ings of  the  workman  before  the  accident  and  the  average 
amount  which  he  is  earning  or  is  able  to  earn  in  some  suit- 
able employment  or  business  after  the  accident  but  shall 
amount  to  one-half  of  such  difference.  In  no  event  shall 
any  weekly  payment  payable  under  the  plan  exceed  ten 
dollars  per  week  or  extend  over  more  than  eight  years  from 
the  date  of  the  accident.  Any  person  entitled  to  receive 
weekly  payments  under  the  plan  is  required,  if  requested 
by  the  employer,  to  submit  himself  for  examination  by  a 
duly  qualified  medical  practitioner  or  surgeon  provided 
and  paid  for  by  the  employer,  at  a  time  and  place  rea- 
sonably convenient  for  the  employee,  within  three  weeks 
after  the  injury,  and  thereafter  at  intervals  not  oftener 
than  once  in  six  weeks.  If  the  workman  refuses  so  to  sub- 
mit or  obstructs  the  same,  his  right  to  weekly  payments 
shall  be  suspended  until  such  examination  shall  have  taken 
place,  and  no  compensation  shall  be  payable  under  the  plan 
during  such  period.  In  case  an  injured  employee  shall  be 
mentally  incompetent  at  the  time  when  any  right  or  privi- 
lege accrues  to  him  under  the  plan,  a  committee  or  guar- 
dian of  the  incompetent  appointed  pursuant  to  law  may, 
on  behalf  of  such  incompetent,  claim  and  exercise  any  such 


214  workmen's  compensation 

right  or  privilege  with  the  same  force  and  effect  as  if 
the  employee  himself  had  been  competent  and  had  claimed 
or  exercised  any  such  right  or  privilege ;  and  no  limitation 
of  time  herein  provided  for  shall  run  so  long  as  said  incom- 
petent employee  has  no  committee  or  guardian.  (Section 
207  added  by  L.  1910,  Ch.  352.) 

§  208.  Settlement  of  disputes.  Any  question  of  law  or 
fact  arising  in  regard  to  the  application  of  the  plan  in  de- 
termining the  compensation  payable  thereunder  or  other- 
wise shall  be  determined  either  by  agreement  or  by  arbi- 
tration as  provided  in  the  code  of  civil  procedure,  or  by  an 
action  at  law  as  herein  provided.  In  case  the  employer 
shall  be  in  default  in  any  of  his  obligations  to  the  employee 
under  the  plan,  the  injured  employee  or  his  committee  or 
guardian,  if  such  be  appointed,  or  his  executor  or  adminis- 
trator, may  then  bring  an  action  to  recover  compensation 
under  the  plan  in  any  court  having  jurisdiction  thereof  as 
on  a  written  contract.  Such  action  shall  be  conducted  in 
the  same  manner  as  an  action  at  law  for  the  recovery  of 
damages  for  breach  of  a  written  contract,  and  shall  for  all 
purposes,  including  the  determination  of  jurisdiction,  be 
deemed  such  an  action.  The  judgment  in  such  action,  in 
favor  of  the  plaintiff,  shall  be  for  a  lump  sum  equal  to  the 
amount  of  the  payments  then  due  and  prospectively  due 
under  the  plan.  In  such  action  by  an  executor  or  adminis- 
trator the  judgment  may  provide  the  proportions,  of  the 
award  or  the  costs  to  be  distributed  to  or  between  the  sev- 
eral dependents.  If  such  determination  is  not  made  it  shall 
be  determined  by  the  surrogate's  court  by  which  such  ex- 
ecutor or  administrator  is  appointed,  in  accordance  with 
the  terms  of  this  article  on  petition  of  any  party  on  such 
notice  as  such  court  may  direct.  (Added  by  L.  1910,  Ch. 
352.) 

§  209.  Preferential  claim ;  not  assignable  or  subject  to 
attachment ;  attorney's  fees.  Any  person  entitled  to 
weekly  payments  under  the  plan  against  any  employer 
shall  have  the  same  preferential  claim  therefor  against  the 
assets  of  the  employer  as  now  allowed  by  law  for  a  claim 
by  such  person  against  such  employer  for  unpaid  wages  or 
personal  services.  Weekly  payments  due  under  the  plan 
shall  not  be  assignable  or  subject  to  attachment,  levy  or 
execution.  No  claim  of  an  attorney  for  any  contingent  in- 
terest in  any  recovery  under  the  plan  for  services  in  secur- 
ing such  recovery  shall  be  an  enforceable  lien  thereon,  un- 


EMPLOYEES   LIABILITY   ACT  215 

less  the  amount  of  the  same  be  approved  in  writing  by  a 
justice  of  the  supreme  court,  or  in  case  the  same  is  tried 
in  any  court,  before  the  justice  presiding  at  such  trial. 
(Added  by  L.  1910,  Ch.  352.) 

§  210.  Cancellation  of  consent.  When  a  consent  to 
the  plan  shall  have  been  filed  in  the  office  of  the  county 
clerk  as  herein  provided,  it  sliall  be  binding  upon  both 
parties  thereto  as  long  as  the  relation  of  employer  and  em- 
ployee exists  between  the  parties,  and  expire  at  the  end  of 
such  employment,  but  it  may  at  any  time  be  canceled  on 
sixty  days'  notice  in  writing  from  either  party  to  the  other. 
Such  notice  of  cancellation  shall  be  effective  only  if  served 
personally  or  sent  by  registered  letter  to  the  last  known 
post-office  address  of  the  party  to  whom  it  is  addressed, 
but  no  notice  of  cancellation  shall  be  effective  as  to  a  claim 
for  injury  occurring  previous  thereto.  (Added  by  L. 
1910,  Ch.  352.) 

§  211.  Reports  of  compensation  plan.  Each  employer 
who  shall  sign  with  any  employee  a  consent  to  the  plan 
shall,  within  thirty  days  thereafter,  file  with  the  commis- 
sioner of  labor  a  statement  thereof,  signed  by  such  em- 
ployer, which  shall  show  (a)  the  name  of  the  employer 
and  his  post-office  address,  (b)  the  name  of  the  employee 
and  his  last  known  post-office  address,  (c)  the  date  of,  and 
office  where  the  original  consent  is  filed,  (d)  the  weekly 
wage  of  the  employee  at  the  time  the  consent  is  signed ;  un- 
less such  statement  is  duly  filed,  such  consent  of  the  em- 
ployee shall  not  be  a  bar  to  any  proceeding  at  law  com- 
menced by  the  employee  against  the  employer.  (Added 
by  L.  1910,  Ck  352.) 

§  212.  Reports  by  employer.  Each  employer  of  labor 
in  this  state  who  shall  have  entered  into  the  plan  with  any 
employee  shall,  on  or  before  the  first  day  of  January,  nine- 
teen hundred  and  eleven,  and  thereafter  and  at  such  times 
as  may  be  required  by  the  commissioner  of  labor,  make  a 
report  to  such  commissioner  of  all  amounts,  if  any,  paid 
by  him  under  such  plan  to  injured  employees,  stating  the 
name  of  such  employees,  and  showing  separately  the 
amounts  paid  under  agreement  with  the  employees,  and 
the  amounts  paid  after  proceedings  at  law,  and  the  pro- 
ceedings at  law  under  the  plan  then  pending.  Such  reports 
shall  be  verified  by  the  employer  or  a  duly  authorized  agent 
in  the  same  manner  as  affidavits.  (Added  by  L.  1910,  Ch. 
352.) 


INJURIES  TO  RAILROAD  EMPLOYEES 

The  Railroad  Law,  Section  64. 
Chapter  49  of  the  Consolidated  Laws  of  the  State  of  New  York. 

§  64.  Injuries  to  employees.  In  all  actions  against  a 
railroad  corporation,  foreign  or  domestic,  doing  business 
in  this  state,  or  against  a  receiver  thereof,  for  personal 
injury  to,  or  death  resulting  from  personal  injury  of  any 
person,  while  in  the  employment  of  such  corporation,  or 
receiver,  arising  from  the  negligence  of  such  corporation 
or  receiver  or  of  any  of  its  or  his  officers  or  employees, 
every  employee,  or  his  legal  representatives,  shall  have  the 
same  rights  and  remedies  for  an  injury,  or  for  death,  suf- 
fered by  him,  from  the  act  or  omission  of  such  corporation 
or  receiver  or  of  its  or  his  officers  or  employees,  as  are 
now  allowed  by  law,  and,  in  addition  to  the  liability  now 
existing  by  law,  it  shall  be  held  in  such  actions  that  per- 
sons engaged  in  the  service  of  any  railroad  corporation, 
foreign  or  domestic,  doing  business  in  this  state,  or  in  the 
service  of  a  receiver  thereof,  who  are  intrusted  by  such 
corporation  or  receiver,  with  the  authority  of  superin- 
tendence, control  or  command  of  other  persons  in  the  em- 
ployment of  such  corporation  or  receiver,  or  with  the 
authority  to  direct  or  control  any  other  employee  in  the 
performance  of  the  duty  of  such  employee,  or  who  have, 
as  a  part  of  their  duty,  for  the  time  being,  physical  con- 
trol or  direction  of  the  movement  of  a  signal,  switch,  loco- 
motive engine,  car,  train  or  telegraph  office,  are  vice-prin- 
cipals of  such  corporation  or  receiver,  and  are  not  fellow- 
servants  of  such  injured  or  deceased  employee.  If  an  em- 
ploj'ee,  engaged  in  the  service  of  any  such  railroad  cor- 
poration, or  of  a  receiver  thereof,  shall  receive  any  injury 
by  reason  of  any  defect  in  the  condition  of  the  ways,  works, 
machinery,  plant,  tools  or  implements,  or  of  any  car,  train, 
locomotive  or  attachment  thereto  belonging,  owned  or 
operated,  or  being  run  and  operated  by  such  corporation 
or  receiver,  when  such  defect  could  have  been  discovered 
by  such  corporation  or  receiver,  by  reasonable  and  proper 
care,  tests  or  inspection,  such  corporation  or  receiver  shall 

216 


RAILROAD  EMPLOYEES  217 

be  deemed  to  have  had  knowledge  of  such  defect  before  and 
at  the  time  such  injury  is  sustained ;  and  when  the  fact  of 
such  defect  shall  be  proved  upon  the  trial  of  any  action  in 
the  courts  of  this  state,  brought  by  such  employee  or  his 
legal  representatives,  against  any  such  railroad  corpora- 
tion or  receiver,  on  account  of  such  injuries  so  received, 
the  same  shall  be  prima  facie  evidence  of  negligence  on 
the  part  of  such  corporation  or  receiver.     This  section 
shall  not  affect  actions  or  causes  of  action  existing  on 
May  twenty-ninth,  nineteen  hundred  and  six;  and  no  con- 
tract, receipt,  rule  or  regulation  between  an  employee  and 
a  railroad  corporation  or  receiver,  shall  exempt  or  limit 
the  liability  of  such  corporation  or  receiver  from  the  pro- 
visions of  this  section. 
This  section  of  the  State  Railroad  Law  is  superseded 
by  the  Federal  Employers'  Liability  Act,  which  is  para- 
mount and  exclusive  where  the  railroad  employee,  at  the 
time  of  the  accident,  is  engaged  in  interstate  commerce. 
Second  Employers  Liahility  Cases,  223  U.  S.  1. 
Burnett  vs.  Erie  R.  R.  Company,  159  App.  Div.  712. 

As  railroad  employees  engaged  in  intrastate  work  are 
covered  by  Groups  1,  2  and  3  of  Section  2  of  the  Work-- 
men's  Compensation  Law,  the  remedy  of  which  is  ex- 
clusive. Section  64  of  the  Railroad  Law  has  become 
obsolete  and  inoperative  as  to  aivy  injury  received  by  a 
railroad  employee  subsequent  to  July  1,  1914.  Its  only 
application  would  come  in  intrastate  cases  where  the  rail- 
road company  had  not  complied  with  Section  50  of  the 
compensation  law. 

(For  the  leading  cases  as  to  the  distinction  between  in- 
terstate commerce  and  intrastate  commerce,  see  Part  I, 
Section  22.  See  also  annotations  to  Section  114,  the 
Workmen's  Compensation  Law.) 


CONSTITUTIONAL  PROVISIONS 

State  Constitution,  Article  I,  Section  19,  authorizing  the  enact- 
ment of  the  Workmen's  Compensation  Law. 

§  19.  Nothing  contained  in  this  constitution  shall  be 
construed  to  limit  the  power  of  the  legislature  to  enact 
laws  for  the  protection  of  the  lives,  health,  or  safety  of 
employees ;  or  for  the  payment,  either  by  employers,  or 
by  employers  and  employees  or  otherwise,  either  directly 
or  through  a  state  or  other  system  of  insurance  or  other- 
wise, of  compensation  for  injuries  to  employees  or  for 
death  of  employees  resulting  from  such  injuries  without 
regard  to  fault  as  a  cause  thereof,  except  where  the  injury 
is  occasioned  by  the  wilful  intention  of  the  injured  em- 
ployee to  bring  about  the  injury  or  death  of  himself  or  of 
another,  or  where  the  injury  results  solely  from  the  in- 
toxication of  the  injured  employee  while  on  duty;  or  for 
the  adjustment,  determination  and  settlement,  with  or 
without  trial  by  jury,  of  issues  which  may  arise  under 
such  legislation ;  or  to  provide  that  the  right  of  such 
compensation,  and  the  remedy  therefor  shall  be  exclusive 
of  all  other  rights  and  remedies  for  injuries  to  employees 
or  for  death  resulting  from  such  injuries;  or  to  provide 
that  the  amount  of  such  compensation  for  death  shall  not 
exceed  a  fixed  or  determinable  sum ;  provided  that  all 
moneys  paid  by  an  employer  to  his  employees  or  their 
legal  representatives,  by  reason  of  the  enactment  of  any 
of  the  laws  herein  authorized,  shall  be  held  to  be  a  proper 
charge  in  the  cost  of  operating  the  business  of  the  em- 
ployer. (Section  19  adopted  Nov.  4,  1913;  in  effect  Jan. 
1,  1914.) 

State  Constitution,  Article  I,  Section  18. 

Injuries  Resulting  in  Death. 

§  18.  The  right  of  action  now  existing  to  recover  dam- 
ages for  injuries  resulting  in  death,  shall  never  be  abro- 
gated; and  the  amount  recoverable  shall  not  be  subject  to 
any  statutory  limitation. 

218 


CODE  PROVISIONS 

Code  of  Civil  Procedure,  Section  1902. 
Injuries  Resulting  in  Death. 

§  1902.  Action  for  causing  death  by  negligence,  etc. 
The  executor  or  administrator  duly  appointed  in  this 
state,  or  in  any  other  state,  territory  or  district  of  the 
United  States,  or  in  any  foreign  country,  of  a  decedent 
who  has  left  him  or  her  surviving  a  husband,  wife,  or  next 
of  kin,  may  maintain  an  action  to  recover  damages  for  a 
wrongful  act,  neglect  or  default,  by  which  the  decedent's 
death  was  caused,  against  a  natural  person  who,  or  a  cor- 
poration which,  would  have  been  liable  to  an  action  in  favor 
of  the  decedent  by  reason  thereof  if  death  had  not  ensued. 
Such  an  action  must  be  commenced  within  two  years  after 
the  decedent's  death.  When  the  husband,  wife  or  next  of 
kin,  do  not  participate  in  the  estate  of  decedent,  under  a 
will  appointing  an  executor,  other  than  such  husband,  wife 
or  next  of  kin,  who  refuses  to  bring  such  action,  then  such 
husband,  wife  or  next  of  kin  shall  be  entitled  to  have  an  ad- 
ministrator appointed  for  the  purpose  of  prosecuting  such 
action  for  their  benefit.  (As  amended  by  Chap.  221,  Laws 
of  1915.) 

For  distribution  of  damages  recovered  under  this  sec- 
tion, see  Code  of  Civil  Procedure,  Section  1903. 

For  actions  to  recover  damages  in  death  cases  not 
covered  by  the  Compensation  Law,  see  Part  I,  Section 
14. 

In  an  action  to  recover  damages  for  causing  death  the 
contributory  negligence  of  the  deceased  is  now  a  defense 
which  must  be  pleaded  and  proven  by  the  defendant. 
Code  of  Civil  Procedure  (Sec.  841  b.) 

219 


220  workmen's  compensation 

FEDERAL  EMPLOYERS'  LIABILITY  ACT 

Federal  Employers'  Liability  Act. 

(35  Stat.  L.  65) 

Approved,  April  22,  1908. 

An  Act  Relating  to  the  liability  of  common  carriers  by 
railroad  to  their  employees  in  certain  cases. 

Be  it  enacted  hy  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled, That  every  common  carrier  by  railroad  while  en- 
gaging in  commerce  between  any  of  the  several  States  or 
Territories,  or  between  any  of  the  States  and  Territories, 
or  between  the  District  of  Columbia  and  any  of  the  States 
or  Territories,  or  between  the  District  of  Columbia  or  any 
of  the  States  or  Territories  and  any  foreign  nation  or 
nations,  shall  be  liable  in  damages  to  any  person  suffering 
injury  while  he  is  employed  by  such  carrier  in  such  com- 
merce, or,  in  case  of  the  death  of  such  employee,  to  his  or 
her  personal  representative,  for  the  benefit  of  the  surviving 
widow  or  husband  and  children  of  such  employee;  and,  if 
none,  then  of  such  employee's  parents ;  and,  if  none,  then  of 
the  next  of  kin  dependent  upon  such  employee,  for  such 
injury  or  death  resulting  in  whole  or  in  part  from  the  neg- 
ligence of  any  of  the  officers,  agents,  or  employees  of  such 
carrier,  or  by  reason  of  any  defect  or  insufficiency,  due  to 
its  negligence,  in  its  cars,  engines,  appliances,  machinery, 
track,  roadbed,  works,  boats,  wharves,  or  other  equipment. 

Sec.  2.  That  every  common  carrier  by  railroad  in  the 
Territories,  the  District  of  Columbia,  the  Panama  Canal 
Zone,  or  other  possessions  of  the  United  States  shall  be 
liable  in  damages  to  any  person  suffering  injury  while  he 
is  employed  by  such  carrier  in  any  of  said  jurisdictions, 
or,  in  case  of  the  death  of  such  employee,  to  his  or  her 
personal  representative,  for  the  benefit  of  the  surviving 
widow  or  husband  and  children  of  such  employee;  and,  if 
none,  then  of  such  employee's  parents ;  and,  if  none,  then  of 
the  next  of  kin  dependent  upon  such  employee,  for  such 
injury  or  death  resulting  in  whole  or  in  part  from  the 
negligence  of  any  of  the  officers,  agents,  or  employees  of 
such  carrier,  or  by  reason  of  any  defect  or  insufficiency, 
due  to  its  negligence,  in  its  cars,  engines,  appliances,  ma- 
chinery, track,  roadbed,  works,  boats,  wharves,  or  other 
equipment. 


FEDERAL  EMPLOYEES*  LIABILITY  ACT  221 

Sec.  3.  That  in  all  actions  hereafter  brought  against 
any  such  common  carrier  by  railroad  under  or  by  virtue 
of  any  of  the  provisions  of  this  act  to  recover  damages 
for  personal  injuries  to  an  employee,  or  where  such  in- 
juries have  resulted  in  his  death,  the  fact  that  the  em- 
ployee may  have  been  guilty  of  contributory  negligence 
shall  not  bar  a  recovery,  but  the  damages  shall  be  diminish- 
ed by  the  jury  in  proportion  to  the  amount  of  negligence 
attributable  to  such  employee:  Provided,  That  no  such 
employee  who  may  be  injured  or  killed  shall  be  held  to  have 
been  guilty  of  contributory  negligence  in  any  case  where 
the  violation  by  such  common  carrier  of  any  statute  enact- 
ed for  the  safety  of  employees  contributed  to  the  injury 
or  death  of  such  employee. 

Sec.  4.  That  in  any  action  brought  against  any  com- 
mon carrier  under  or  by  virtue  of  any  of  the  provisions  of 
this  act  to  recover  damages  for  injuries  to,  or  the  death 
of,  any  of  its  employees,  such  employee  shall  not  be  held 
to  have  assumed  the  risks  of  his  employment  in  any  case 
where  the  violation  by  such  common  carrier  of  any  statute 
enacted  for  the  safety  of  employees  contributed  to  the  in- 
jury or  death  of  such  employee. 

Sec.  5.  That  any  contract,  rule,  regulation,  or  device 
whatsoever,  the  purpose  or  intent  of  which  shall  be  to  ena- 
ble any  common  carrier  to  exempt  itself  from  any  liability 
created  by  this  act,  shall  to  that  extent  be  void :  Provided, 
That  in  any  action  brought  against  any  such  common  car- 
rier under  or  by  virtue  of  any  of  the  provisions  of  this 
act,  such  common  carrier  may  set  off  therein  any  sum  it 
has  contributed  or  paid  to  any  insurance,  relief  benefit,  or 
indemnity  that  may  have  been  paid  to  the  injured  em- 
ployee or  the  person  entitled  thereto  on  accoAnt  of  the 
injury  or  death  for  which  said  action  was  brought. 

'Sec.  6.  That  no  action  shall  be  maintained  under  this 
act  unless  commenced  within  two  years  from  the  day  the 
cause  of  action  accrued. 

"Under  this  act  an  action  may  be  brought  in  a  circuit 
court  of  the  United  States,  In  the  district  of  the  residence 
of  the  defendant,  or  in  which  the  cause  of  action  arose,  or 
in  which  the  defendant  shall  be  doing  business  at  the  time 
of  commencing  such  action.  The  jurisdiction  of  the  courts 
of  the  United  States  under  this  act  shall  be  concurrent 
with  that  of  the  courts  of  the  several  States,  and  no  case 
arising  under  this  act  and  brought  in  any  state  court  of 


222  workmen's  compensation 

competent  jurisdiction  shall  be  removed  to  any  court  of 
the  United  States."  (Sub'd.  6,  amended  by  H.  R.  17263, 
Approved,  April  5,  1910.) 

Sec.  7.  That  the  term  "common  carrier"  as  used  in 
this  act  shall  include  the  receiver  or  receivers  or  other 
persons  or  corporations  charged  with  the  duty  of  the 
management  and  operation  of  the  business  of  a  common 
carrier. 

Sec.  8.  That  nothing  in  this  act  shall  be  held  to  limit 
the  duty  or  liability  of  common  carriers  or  to  impair  the 
rights  of  their  employees  under  any  other  act  or  acts  of 
Congress,  or  to  affect  the  prosecution  of  any  pending  pro- 
ceeding or  right  of  action  under  the  act  of  Congress  en- 
titled "An  act  relating  to  liability  of  common  carriers  in 
the  District  of  Columbia  and  Territories,  and  to  common 
carriers  engaged  in  commerce  between  the  States  and  be- 
tween the  States  and  foreign  nations  to  their  employees," 
approved  June  eleventh,  nineteen  hundred  and  six. 

Sec.  9.  That  any  right  of  action  given  by  this  act  to  a 
person  suffering  injury  shall  survive  to  his  or  her  personal 
representative,  for  the  benefit  of  the  surviving  widow  or 
husband  and  children  of  such  employee,  and,  if  none,  then 
of  such  employee's  parents ;  and,  if  none,  then  of  the  next 
of  kin  dependent  upon  such  employee,  but  in  such  cases 
there  shall  be  only  one  recovery  for  the  same  Injury.  (As 
added  by  H.  R.  17263,  approved  April  5, 1910.) 

This  act  supersedes  the  Compensation  Law  and  all 
other  state  laws  where  the  railroad  employee  is  engaged 
in  interstate  commerce  and  the  injury  is  caused  by  or 
attributable  to  the  negligence  of  the  railroad  company. 

For  the  leading  cases  upon  the  distinction  between  in- 
terstate and  intrastate  commerce,  see  Part  I,  Section  22. 

See  also  annotations  to  Sec.  114,  The  Workmen's  Compensation  Law. 


TABLE  OF  CASES 


A 

PAGE 

Adler,  Sam'I,  deceased.  Matter 
of  vs.  Thomashefsky  Thea- 
tre Co.,  Claim  No.  S2437, 
Work.   Comp.  Com 91 

Albanese  vs.  Stewart,  78  Misc. 

Rep.  (N.  Y.)  681   86 

Anderson,  Andrews  J.,  vs. 
American  Mfg.  Co.,  Claim 
No.  13861,  St.  Ind.  Com., 
March    20,    1916 125 

Atlantic    Transport    Co.,    vs. 

Imbrovek,  234  U.  S.  52.  .38,  77 

Aylesworth,  Matter  of  vs. 
Phoenix  Cheese  Co.,  170 
App.  Div.  34;  155  N.  Y. 
Supp.  916;  8  N.  Y.  St. 
Dep.  Rep.  383. 

14,  38,  74,  77,  84,  92,  98,  99 


B 


Bargey,  Matter  of  vs.  Massaro 

Macaroni    Co.,    170    App. 

Div.,  103;  155  N.  Y.  Supp. 

1076 22,  45,  88,  93,  96 

Barlow     vs.     Lrehigh     Valley 

R.  R.  Co.,  214  N.  Y.  116. .     48 
Bates,    Floyd,    Matter   of   vs. 

Alonzo    Miles,   Claim   No. 

26553,  Work.  Comp.  Com., 

Feb.    8,    1915    100 

Banks,    George,    deceased,   vs. 

Adams    Express    Co.,    St. 

Industrial   Com.,   Mar.    7, 

1916    108 

Beck,    Christopher,    deceased, 

vs.     Nichols    &    Webster, 

Claim  No.  52857,  St.  Ind. 

Com.,   Nov.  15,   1915 94 

Bennett,  Matter  of  vs.  A.  U. 

Kressell,    St.    Ind.    Com., 

Jan.  5,  1916  104 

Benton,  Matter  of  vs.  Fraser, 

Claim  No.  1383,  App.  Div. 

Third    Dept.,    Jan.,    1916; 

Aff.  156  N.  Y.  Supp.  1116 

24,  80 


Berg,  Albert,  Matter  of  vs. 
Great  Lakes  Dredge  & 
Dock  Co.,  Claim  No. 
12205,  St.  Ind.  Com.,  July 

16,    1915;    reversed    

App.  Div. ; N.  Y. 

Supp.  (May  2,  1916)     78 

Berlinger,  Matter  of  vs. 
Ritchie  &  Cornell,  App. 
Div.  Third  Dept.,  Jan., 
1916;  156  N.  Y.  Supp. 
1115    24,  85 

Bertolami  vs.  U.  N.  &  C.  Co., 
198  N.  Y.  71  208 

Biovanni,  .  Peter,  deceased. 
Matter  of  vs.  New  Eng- 
land S.  S.  Co.,  Claim  No. 
62472,  St.  Ind.  Com 148 

Blatt,  Hans  Max,  deceased,  vs. 
Schoenberger  &  Noble, 
File  No.  269,  The  Bulletin, 
Vol.  1,  No.  6,  p.  10 108 

Bloom  vs.  Jaffe,  157  N.  Y. 
Supp.  926;  94  Misc.  222. 

116,  145 

Bloom,  Matter  of  vs.  Tillen  & 
Bleek,  The  Bulletin,  Vol. 
1,  No.  2,  p.  12 149 

Bloomfleld,  Matter  of  vs.  S. 
November,  Claim  No. 
74369,  afF.  App.  Div.  Third 
Dept,,  Mar.  8,  1916;  156 
N.  Y.  Supp.  1116  (with- 
out opinion)  84,  122,  181 

Bravis  vs.  C.  M.  &  St.  P.  R.  R. 

Co.,  217  Fed.  Rep.  234. . .     42 

Brewster,  A.  Foster,  deceased. 
Matter  of,  Claim  No.  16410    81 

Brio,  Francesco  P.,  deceased. 
Matter  of  vs.  Carpenter, 
Boxley  &  Herrick,  The 
Bulletin,  Vol.  1,  No.  6,  p. 
11  129 

Broderick,  Matter  of  vs.  So. 
Pacific  Co.,  4  N.  Y.  St. 
Dep.  Rep.  871   107 


223 


224 


TABLE  OF   CASES 


PAGE 

Broleski,  Matter  of  vs.  Nichols 
Copper  Co.,  AfF.  166  N.  Y. 
Supp.  1096,  Claim  No. 
24887    (without   opinion).   183 

Brown,  Matter  of  vs.  Rich- 
mond L.  &  R.  R.  Co.,  The 
Bulletin,  Vol.  1,  No.  6,  p. 
12  104 

Buell,  Wm.  H.,  deceased,  Mat- 
ter of  vs.  N.  Y.  Central 
R.  R.  Co.,  The  Bulletin, 
Vol.  1,  No.  5,  p.  12 170 

Buggel,  Henry  F.,  Matter  of. 
File  No.  2918,  St.  Ind. 
Com.,  Jan.  18,  1916 86 

Burke,  Ed.,  Matter  of  vs.  In- 
dustrial Engineering  Co., 
Claim  No.  80288,  Work. 
Comp.  Cora.,  Feb.  8,  1916.  117 

Burnett  vs.   Erie   R.   R.   Co., 

169  App.  Div.  712 217 

Burns,  Matter  of  vs.  So.  Pa- 
cific Co.,  216  N.  Y.  Memo. 
788 77 

Burton,  George,  Matter  of  vs. 
Jas.  A.  Whalen  &  Sons, 
Claim  No.  45,  AflF.  166 
N.  Y.  Supp.  1117  (without 
opinion)    88 

Butler,  Matter  of  vs.  She£Seld 
Farms,  The  Bulletin,  Vol. 
1,  No.  4,  p.  11 109 


Cahill,  Jas.  J.,  deceased  vs. 
Terry  &  Trench  Co., 
Death  File,  No.  9,  St.  Ind. 
Com.,  March  27,  1916 148 

Cantor,  Matter  of,  vs.  Rubin 
Musicant  Co.,  8  N.  Y.  St. 
Dep.   Rep.  892 96 

Cappelli,  Matter  of,  vs.  F.  R. 
Cranford,  Inc.,  The  Bul- 
letin, Vol.  1,  No.  8,  p.  11,   107 

Carini,  Matter  of  vs.  Nickle 
Plate  R.  R.  Co.,  4  N.  Y. 
St  Dep.  Rep.  428 108 

Carita,  Ferdinando,  Matter  of 
vs.  Star  Box  &  Lumber 
Co.,  File  No.  21001,  St. 
Ind,  Com.,  Dec.  20,  1916.     97 

Carroll,  Matter  of  vs.  Knick- 
erbocker Ice  Co.,  169  App. 
Div.  460;  165  N.  Y.  Supp. 
1    166 


PAGE 

Chicchetti,  Matter  of  vs.  Int. 
Rapid  Transit  Co.,  The 
Bulletin,  Vol.  1,  No.  2,  p. 
10     127 

Cino,  Matter  of  vs.  Norton 
Gorman  Cont.  Co.,  Aff. 
156  N.  Y.  Supp,  1117, 
Claim  No.  5869  n/c  (with- 
out   opinion) 79,  103 

Clark  vs.  N,  Y,  Central  & 
Hudson  R.  R,  R.  Co.,  191 
N.  Y.  416 209 

Clay,  Matter  of  vs.  Jas. 
Thompson  Steel  Const. 
Co.,  Claim  No.  40846, 
Work.  Comp.  Com.,  Feb. 
24,   1915    104 

Clements,  Joseph,  Matter  of. 
Claim  No.  42660 81 

Cole,  Matter  of,  vs,  Calahan  & 
Sperry,  4  N.  Y.  St.  Dep. 
Rep.  348    83,  99 

Coleisi    vs.    Penn.    R.    R.    Co., 

208  N.  Y.  276 210 

Colleri  vs.  Turner,  216  N.  Y. 

Memo,  676   209 

Collins,  Matter  of  vs,  Brook- 
lyn Union  Gas  Co,,  171 
App.  Div.  881;  156  N.  Y. 
.Supp.  957;  reversing  4 
N.   Y.   St,   Dep.   Rep.   449 

106,  183,  185 

Connors  vs.  Semet-Solvav  Co., 
Sup.  Ct.  Sp.  Term,  March 

22,  1916;  Misc.  . 

27,  66,  114,  122,  147 

Coons,  Matter  of  vs.  Kennedy 
Towing  Co.,  File  No,  259, 
State   Ind,   Com 87,76 

Costello,  Matter  of  vs.  Ameri- 
can Express  Co,,  (Tay- 
lor)  217  N.  Y.  179 14,  85 

Crockett,  Matter  of  vs.  State 
Insurance  Fund,  170  App. 
Div.  122;  166  N.  Y.  Supp. 
692;  Claim  No,  48329, 

64,  66,  67,  126,   187 

Crouse,  Levi,  Matter  of  vs, 
John  J.  Collins  &  Sons, 
Work.  Comp.  Com.,  Feb.  6, 
1915,  Claim  No.  26933.,..   106 

Cunningham,  Matter  of  vs. 
Buffalo   C.    &    B.    Rolling 

Mills, App.  Div. ; 

166  N.  Y.  Supp.  797. 

121,  184,  144 


TABLE  OF   CASES 


225 


D 

PAGE 

Dailey  vs.  StoU,  211  N.  Y.  74.  208 

Dale,  Matter  of  vs.  Saunders 
Bros.,  App.  Div.  Third 
Dept.,     March     8,     1916; 

App.  Div.  ;   167 

N.    Y,     Supp.     1062;    aflf. 
218  N.  Y.  59. 

14,  86,  93,  94,  118,  183 

Dearborn,  Matter  of  vs.  Peu- 
geot Auto  Import.  Co.,  St. 
Ind.  Com.,  Feb.  3,  1916, 
170  App.  Div.  93;  155 
N.  Y.  Supp.  769.110,  114,  184 

Deeny  vs.  Wright  &  Cobb 
Lighterage  Co.,  36  N.  J. 
Law  J.   121 86 

Del.  Lack.  &  Western  R.  R.  vs. 

Yurkonis,  238  U.  S.  439..     42 

De  La  Gardelle,  Matter  of  vs. 
Hampton  Co.,  167  App. 
Div.  617;  153  N.  Y.  Supp. 
162 16,  68,  73,  83,  84,  91 

De  Phillippis,  Matter  of  vs. 
Faulkenberg,  170  App. 
Div.  153;  155  N.  Y.  Supp. 
761     105,  187 

Di  Paolo,  Matter  of  vs.  Crim- 
ins  Contr.  Co.,  St.  Ind. 
Com.,  Nov.  3,  1916,  The 
Bulletin,  Vol.  1,  No.  3,  p. 
7,  AflF.  App.  Div.  Third 
Dept.,  May  2,  1916,  with- 
out opinion  10,  79 

De  Voe,  Matter  of  vs.  N.  Y. 
State  Railways,  169  App. 
Div.  472;  155  N.  Y.  Supp. 
12    30,  68,  74,  106 

Diciaiulo,  Matter  of  vs.  Ker- 
bauch,  1  N.  Y.  St.  Dep. 
Rep.  424 10 

Dolici,  Matter  of  vs.  Chas.  A. 
Meyer  Cont.  Co.,  Claim 
No.  26818,  166  N.  Y. 
Supp.  1120  88 

Downe,  Percy  R.,  Matter  of 
vs.  Motor  Boat  Club  of 
Buffalo,  Claim  No.  11325, 
St.  Ind.  Com.,  Dec.  29, 
1915    98 

Drury,  Matter  of  vs.  Amer. 
Fruit  Prod.  Co.,  163  App. 
Div.  509    201 

Dunn,  Matter  of  vs.  West  End 
Brewing  Co.,  5  N.  Y.  St. 
Dep.  Rep.  113 107 


E 

>  PAGE 

Easter,  Govan,  deceased,  Mat- 
ter of  vs.  Washington 
Heights  Van  Co.,  Work. 
Comp.  Com.,  May  3,  1916; 
Claim  No.  34155 148 

Edwardsen,  Matter  of  vs.  Jar- 
vis  Lighterage  Co.,  168 
App.  Div.  368;  153  N.  Y. 
Supp.  391    37,  76 

Employers  Liability  Assurance 
Corp.,  In  re,  (Nichols 
case),  215  Mass.  497;  102 
N.  E.  697 9 

Eldridge,  Wm.  I.,  deceased. 
Matter  of  vs.  Endicott, 
Johnson  &  Co.,  File  No. 
15061,  St.  Ind.  Com., 
April   12,  1916 101 


Fagan,  Christopher,  Matter  of 
vs.  United  Traction  Co., 
Claim  No.  36456,  St.  Ind. 
Com.,  Feb.  23,  1916 117 

Fairchild,  Matter  of  vs.  Penn. 
R.  R.  Co.,  170  App.  Div. 
135;  155  N.  Y.  Supp.  761. 

118,  169 

Farrar,  Vincent,  Matter  of  vs. 
Gristede  Bros.,  Claim  No. 
24089,  St.  Ind.  Com.,  Jan. 
19,   1916    86 

Feinman,  Matter  of  vs.  Albert 
Mfg.  Co.,  170  App.  Div. 
147;  155  N.  Y.  Supp.  909  121 

Fennelly,  Patrick,  Matter  of 
vs.  Burden  Iron  Co.,  File 
No.  14876;  Work.  Comp. 
Com 100 

Fenton   vs.   Thorley,  5   W.  C. 

C.  1    8 

Fiocca,  Matter  of  vs.  Dillon, 
Claim  No.  23927,  St.  Ind. 
Com.,  Feb.  10,  1916,  The 
Bulletin,  Vol.  1,  No.  b, 
p.  13   86 

Fitzgibbons,  Michael,  deceased. 
Matter  of  vs.  Clarence  S. 
Woodward,  St.  Ind.  Com., 
Nov.  24,  1916 87 

Fogarty,  Wm.,  deceased.  Mat- 
ter of  vs.  National  Biscuit 
Co.,  Claim  No.  350,  St. 
Ind.  Com.,  Feb.  3,  1916; 
The  Bulletin,  Vol.  1,  No. 
6,  p.  9 87 


226 


TABLE  OF  CASES 


Foley,  Matter  of  vs.  Bretton 
Hall  Co.,  Claim  No.  57177; 
Aff.  156  N.  Y.  Supp.  1122    87 

Foley,  Matter  of  vs.  Peter  F. 
Doran,  Work.  Comp. 
Com.,  March  29,  1915; 
Claim  No.  57508 91 

Fortino,  Matter  of  vs.  Mer- 
chant's  Desp.   Trans.   Co., 

App.  Div.  ;   166 

N.  Y.  Supp.  262 120 

Fresusk   vs.    Pittsburgh   Cont. 

Co.,  159  App.  Div.  356..  207 

Friedenberg,  Matter  of  vs. 
Empire  United  Railways 
Co.,  168  App.  Div,  618; 
164  N.  Y.  Supp.  851..  118,  122 

Friscia,  Matter  of  vs.  Drake 
Bros.,  167  App.  Div.  496; 
168  N.  Y.  Supp.  892. 

11,  29,   128 


Gamba,  Matter  of  vs.  N.  Y. 
Post.  Grad.  School  &  Hos- 
pital, Work.  Comp.  Com., 
March   29,   1915 98 

Gallenkamp  vs.  Garvin  Mach. 

Co.,  179  N.  Y.  688 65 

Gardner,  Matter  of  vs.  Horse- 
head's  Const.  Co.,  171  App. 
Div.  66;  166  N.  Y.  Supp. 
899   85,  95,  184 

Gimber,  Matter  of  vs.  T.  P. 
Kane  Co.,  Claim  No. 
26199,  2  N.  Y.  St.  Dep. 
Rep.  475;  aff.  165  N.  Y. 
Supp.  1109    16,  98 

Gleisner,  Matter  of  vs.  Gross 
&  Herbener,  170  App. 
Div.  87;  166  N.  Y.  Supp. 
946 6,  20,  88,  93,  96,  188 

Godder,  J.  Irving,  Matter  of, 
vs.  Hartt,  et.  al.,  St.  Ind. 
Com.,  Feb.  9,  1916 92 

Goetz  vs.  Duffy,  215  N.  Y.  68    66 

Goldstein,  Matter  of  vs.  Cen- 
ter Iron  Works,  167  App. 
Div.  626;  168  N.  Y.  Supp. 
224    6,  188 

Gould's  case,  215  Mass.  480..     86 

Grady,  Matter  of  vs.  Holliday, 

156   N.  Y.   Supp.   1110.. 18,  81 

Grammici,  Matter  of  vs.  Simon 
Zimm,  Aff.  App.  Div. 
Third  Dept.,  March  8, 
1916;  - —  N.  Y.  Supp. 
,    (without  opinion)  . .  121 


PAGE 

Gray,  Matter  of  vs.  Deione, 
Aff.  App.  Div.  Third 
Dept.,  March  8,  1916; 
(without  opinion).  Claim 
No.  72766 131 

Great  Northern  R.  R.  Co.,  vs. 
Whitehead,  4  B.  W.  C.  C.      ' 
89   46 

Green,  Fred.  H.,  Matter  of  vs. 
Miller  &  Miller,  File  No. 
17810,  State  Ind.  Com., 
Jan.   81,   1916 97 

Griffiths,  Jos.,  Matter  of  vs. 
American  Bitumastic  En- 
amels Co.,  St.  Ind.  Com., 
April  4,  1916 97 


H 


Herkey,  Matter  of  vs.  Agar 
Mfg.  Co.  90  Misc.  467;  153 
N.   Y.   Supp.   869 47,  148 

Harnett,  Matter  of  vs.  Thos. 
J.  Steen  Co.,  2  N.  Y.  St. 
Dep.  Rep.  492;  Aff.  with- 
out opinion,  158  N.  Y. 
Supp.  1119;  Appeal  dis- 
missed 216   N.   Y.   101. 

9,  100,  101,  187 

Harrison,  Matter  of  vs.  Kane, 
Claim  No.  27411;  Aff.  163 
N.  Y.  1119  (without  opin- 
ion)      103 

Heitz,  Matter  of  vs.  Ruppert, 
Aff.  165  N.  Y.  Supp.  1112; 

N.   Y.   ,    (Court 

of  Appeals,  May  2,  1916). 

100,  102,  107 

Hendricks,  Matter  of  vs.  Sea- 
man Bros.,  170  App.  Div. 
188;  156  N.  Y.  Supp.  688. 

86,  102 

Henry,  Matter  of  vs.  G.  Levor 
&  Co.,  Claim  No.  66656, 
St.  Ind.  Com 88,  99 

Hiland,  Jas.  J.,  deceased.  Mat- 
ter of  vs.  D.  Winant,  Inc., 
The  Bulletin,  Vol.  1,  No. 
2,  pp.  9,  10 ,  186 

Hillary,  John  T.  vs.  Kaufman 
Bros.,  Claim  No.  56438,  St. 
Ind.  Com.,  Jan.  8,  1916..     91 

Hinman,  Matter  of,  147  App. 

Div.  452;  206  N.  Y.  658..   127 

Holland  Laundry  vs.  Travelers 
Ins.  Co.,  166  App.  Div. 
621    66 


TABLE  OF  CASES 


227 


PAGE 

Homeopathic  Hospital  of  Al- 
bany vs.  Chalmers,  157 
N.    Y.   Supp.    1000 116 

Horan,  Chas.,  deceased,  Mat- 
ter of  vs.  Tidewater 
Transp.  Co.,  Claim  No. 
28745,  Work.  Comp.  Com., 
April  80,  1915 76 

Hotaling,  Matter  of  vs. 
Standard  Oil  Co.,  The  Bul- 
letin, Vol.  1,  No.  1,  p.  12..   105 

Hubbell  vs.  Pioneer  Paper  Co., 

160  App.  Div,  356 210 

Hurle,   In   re,  217   Mass.   223; 

104  N.  E.  336 33 

Hurley  vs.  Alcott,  198  N.  Y. 

132    208 


Ignatowsky,     Matter     of     vs. 

Berman,      The      Bulletin, 

Vol.   1,  No.  3,  p.  9 112 

Illinois     Central     R.     R.     vs. 

Behrens,  233  U.  S.  473 42 

Ives   vs.   So.    Buffalo   Railway 

Co.,  201  N.  Y.  271 4 


Jackson  vs.  Green,  201  N.  Y. 

76  208 

Jackson  vs.  C.  M.  &  St.  Paul 

R.  R.,  210  Fed.  Rep.  495.    42 

James,  Matter  of  vs.  Wether- 
bee,  Sherman  Co.,  2  N.  Y. 
St.  Dep.  Rep.  483 96 

Jennings,  Matter  of  vs.  State 
of  New  York,  St.  Ind. 
Com.,  Sept.  20,  1915 98 

Jensen,  Matter  of  vs.  So.  Pa- 
cific Co.,  215  N.  Y.  514. 
4,  27,  37,  39,  73,  75,  77,  168,  170 

Johnson,  In  re,  217  Mass.  378; 

104  N.  E.  735 33 


K 


Kansas  City  West  R.  R.  Co. 
vs.  McAdow,  164  S.  W. 
188;  Aff.  U.  S.  Sup.  Ct., 
Jan.  3,  1916,  240  U.  S.  51     43 

Keffer,  Albert,  Matter  of  vs. 
Yonkers  Auto  Repair  Co., 
Claim  No.  37170;  State  In- 
dustrial   Commission    92 


PAGE 

Kennedy,  Matter  of  vs.  Ken- 
nedy Mfg.  &  Eng.  Co., 
Claim  No.  72533,  St.  Ind. 
Com.,  Jan.  8,  1916;  The 
Bulletin,  Vol.  1,  No.  6,  p. 
12   81 

Kenny,  Matter  of  vs.  Union 
Railway  Co.,  166  App. 
Div.  497;  152  N.  Y.  Supp. 
117     95,  188 

Kennerson  vs.  Thames  Tow- 
boat  Co.,  94  Atl.  Rep. 
(Conn.)    372    86 

Kenz  vs.  Bernheimer  & 
Schwartz  Pilsner  Brew- 
ing Co.,  162  App.  Div.  777  207 

Kiegher,  Matter  of  vs.  General 

Electric    Co.,    App. 

Div.    ;    N.    Y. 

Supp. ;  (May  2,  1916)   115 

Kiernan,  Matter  of  vs.  Freid- 
stadt  Underpinning  Co., 
Claim  No.  225  n.  c,  App. 
Div.  Third  Dept.,  March  8, 
1916;  157  N.  Y.  Supp.  900. 

79,  108,  112 

Kilberg,  Matter  of  vs.  V.  S. 
Vitsch,  171  App.  Div.  89; 
156  N.  Y.  Supp.  971..  118,  129 

King  vs.  The  ViscoUoid  Co., 
219  Mass.  420;  106  N.  E. 
988    82 

Kingsley,  Matter  of  vs.  Dono- 
van, 169  App.  Div.  828; 
155  N.  Y.  Supp.  801 102 

Klinger,  Geo.,  Jr.,  vs.  J. 
Odell  Whitenack,  Claim 
No.  50467,  St.  Ind.  Com., 
July  26,   1915 129 

Koaster   vs.    Rochester   Candy 

Co.,  194  N.  Y.  92 55 

Kohler,  Matter  of  vs.  Froh- 
man,  167  App.  Div.  533; 
153  N.  Y.  Supp.  559.17,  88,  185 

Kolb,  Matter  of  vs.  Borden 
Cond.  Milk  Co.,  4  N.  Y. 
St.  Dep.  Rep.  347;  Claim 
No.  32853;  Aff.  App. 
Div.,  Third  Dept.,  Mav  2, 
1916    '....   129 

Kossoff,  Matter  of  vs.  R.  H. 
Macy  &  Co.,  St.  Ind.  Com., 
Feb.   10,   1916 122 

Kratz,  Mathias  vs.  Sup.  Chem- 
ical Co.,  Claim  No.  24411, 
St.  Ind.  Com.,  March  6, 
1916    100 


228 


TABIiE  OF  CASES 


Kreppell,  Matter  of  vs.  Boy- 
land,  2  N.  Y.  St.  Dep. 
Rep.   489    128 


Lamont  Prentiss  vs.  N.  Y. 
State  Railway  Co.,  Claim 
No.  29483;  St.  Ind.  Com., 
Nov.  16,   1915 116 

La  Fleur,  Henry,  deceased. 
Matter  of  vs.  Geo.  M. 
Wood,  Jr.,  St.  Ind.  Com., 
March   14,   1916 108 

Larsen,  Matter  of  vs.  Paine 
Drug  Co.,  169  App.  Div. 
888;  155  N.  Y.  Supp.  759; 

Aff. N.  Y. ,  May 

12,  1916   18,  82,  185 

Lazerick,  Matter  of  vs.  N.  Y., 
N.  H.  &  H.  R.  R.  R.  Co., 
Claim  No.  29452;  Aff.  155 
N.  Y.  Supp.  1119  (without 
opinion)     102 

Lederer,  Rose,  Matter  of  vs. 
Deutsch  Bros.,  Claim  No. 
21382,  St.  Ind.  Com.,  Feb. 
14,   1916    106 

Lepidus,  Sam'l,  Matter  of  vs. 
Empire  City  I.umber  Co., 
Claim  No.  3181,  St.  Ind. 
Com.,  Jan.  26,  1916 92 

Leslie,  Hugh,  deceased,  vs. 
O'Connor  &  Richraan,  File 
No.  70582,  St.  Ind.  Com., 
July  28,  1916;  AflF.  App. 
Div.  Third  Dept.,  May  2, 
1916    (without    opinion) . .  104 

Lester  vs.  Otis  Elevator  Co., 
169  App.  Div.  613;  158 
N.   Y.   Supp.   1058 46,  142 

Linck,  Matter  of  vs.  Millard, 

4  N.  Y.  St.  Dep.  Rep,  385    99 

Lipstein    vs.    Provident    Loan 

Society,  164  App.  Div.  782  207 

Lloyd  vs.  Power  Spec.  Co., 
File  No.  291,  The  Bulletin, 
Vol.  1,  No.  6,  p.  9 34,  95 

Logerto  vs.  Central  Bldg.  Co., 

198  N.  Y.  390 208 

Ludwig,  Matter  of  vs.  M. 
Groh's  Sons,  State  Ind. 
Com.,  March  4,  1916 106 


Lottawanna  The,  21  Wall  558    38 
Lyon,  Matter  of  vs.  Windsor 
&  Davis,  App.  Div.  Third 
Dept.     May     Term     1916; 

App.      Div.      ; 

N.  Y.  Supp.  ..25,  85 


M 


Manning  vs.   Int.  Marine  Co., 

212  Fed.  Rep.  938 37 

Marinaccio,  Matter  of  vs. 
Flinn-  O'Rourke  Co.,  File 
No.  5465,   St.   Ind.   Com.; 

App.  Div,  ;  

N.   Y.   Supp.  ,    (May 

2,    1916) 131 

Marino  vs.  Lehmier,  178  N.  Y. 

680    65 

Marley,  Thomas,  Mgitter  of  vs. 
Otis  Elevator  Co.,  Claim 
No.  43636,  St.  Ind.  Com., 
March   27,   1916 125 

Martucci,  Matter  of  vs.  Hill 
Bros.  Co.,  Claim  No. 
70685,  171  App.  Div.  370; 
156  N.  Y.  Supp.  833 87 

Mason-Henry  Press  vs.  Aetna 
Life  Ins.  Co.,  211  N.  Y. 
489    55 

Mazzarizi,  Matter  of  vs.  Ward 
&  TuUy,  Claim  No.  70995, 
170  App.  Div.  868;  156 
N.   Y.   Supp.   964 78,  108 

McCaflPrey,  Matter  of  vs. 
Tager  Cont.  Co.,  The 
Bulletin,  Vol.  1,  No.  2,  p. 
11    149 

McCaffrey,  Matter  of  vs.  Turn- 
bull,  The  Bulletin,  Vol. 
1,  No.  6,  p.  21 149 

McComsey,  Fred,  Matter  of  vs. 
Geo.  E.  Simmons,  Claim 
No.  14407,  The  Bulletin, 
Vol.  1,  No.  6,  p.  18.. 23,  96,  98 

McDonald  vs.  Mallory,  77   N. 

Y.    546    .* 87 

McGraff,  Jas.  J.,  deceased,  vs. 
Robt.  Tapper,  Claim  No. 
24218,  Workmen's  Com- 
pensation   Commission ....     76 

McMahon,  Matter  of  vs.  Inter- 
borough  Rapid  Transit 
Co.,  6  N.  Y.  St.  Dep.  Rep. 
109    83,  99 

McMurray,  Matter  of  vs.  J.  J. 
Little  &  Ives  Co.,  8  N.  Y. 
St.    Dep.    Rep.   896. ..  .88,  107 


TABLE  OF  CASES 


229 


PAGE 

McNeill,  Thos.  J.,  deceased,  vs. 
F.  Holman  &  Sons,  Inc., 
St.  Ind.  Com.,  March  7, 
1916;  The  Bulletin,  Vol. 
1,  No.  6,  p.  4 127 

McQueeney,  Matter  of  vs. 
Sutphen  &  Meyer,  167 
App.  Div.  528;  158  N.  Y. 
Supp.  554.. 52,  69,  80,  135,  146 

Miallo,  Matter  of  vs.  City  of 
Watertown,  Board  of 
Waterworks,  Work.  Comp. 
Com.,  March  29,  1915....     98 

Mihn,  Matter  of  vs.  Hussey, 
169  App.  Div.  742;  155 
N.  Y.  Supp.  860.  .14,  82,  83,  97 

Miller,  Chas.  R.,  deceased,  vs. 
American  Express  Co.,  St. 
Ind.   Com.,  Jan.   26,    1916  104 

Miller  vs.  New  York  Railways 
Co.,  171  App.  Div.  316; 
157  N.  Y.  Supp.  200 144 

Miller   vs.    No.   Hudson  Cont. 

Co.,   166   App.  Div.  348..     16 

Mills,  Chas.  V.,  deceased,  Mat- 
ter of  vs.  L.  B.  Locke  & 
Potts,  File  No.  449,  St. 
Ind.  Com.,  July  12,  1915..     91 

Miner,  Matter  of  vs.  TurnbuU, 
The  Bulletin,  Vol.  1,  No. 
6,  p.  21 149 

Mochler,  Matter  of  vs. 
Hawkes,  Award  reversed, 
App.  Div.  Third  Dept., 
May   2,    1916,   opinion   by 

Howard,    J.;    App. 

Div.    ;    N.    Y. 

Supp.  .   120 

Mohr,  Frank,  deceased,  Mat- 
of  vs.  Fredk.  L.  Cranford, 
Inc.,  The  Bulletin,  Vol.  1, 
No.  6,  p.  10 109 

Mooney,  Matter  of  vs.  Weber 
Piano  Co.,  166  N.  Y. 
Supp.  1185 99 

Moore,  Matter  of  vs.  Lehigh 
Valley  R.  R.  Co.,  2  N.  Y. 
St.  Dep.  Rep.  472;  169 
App.  Div.  177;  154  N.  Y. 
Supp.    620    102,  169 

Moore,  Matter  of  vs.  Wm. 
Harkins  Co.,  4  N.  Y.  St. 
Dep.  Rep.  883 107 


PAOE 

Morrisey,  Matter  of  vs.  N.  Y. 

Railways   Co.,   Claim   No. 

33284,  Afif.  154  N.  Y.  Supp. 

1134    102,  110 

Morey,  Matter  of  vs.  Worden, 

2    N.    Y.    St.    Dep.    Rep. 

494   124 

Myerhof,  Walter  E.  vs.  Myer- 

hof      Bros.,      Claim      No. 

63985,  St.  Ind.  Com.,  Oct. 

20,   1915    94 

Myers,   Adam,   Matter    of   vs. 

Ed.  J.   Smith,   Claim   No. 

6222,  Work.  Comp.  Com., 

March  29,   1915 106 


N 


Newman,  Matter  of  vs.  New- 
man, 169  App.  Div.  745; 
155   N.  Y.  Supp.  665. 

14,  17,  20,  21,  83,  86,  93,  96,  106,  137 

N.  Y.  C.  &  Hud.  River  R.  R. 

vs.  Carr,  238  U.  S.  260..     42 

Nicholson,  Matter  of  vs.  Klip- 
stein  &  Co.,  File  No.  419, 
AfF.,  App.  Div.  Third  . 
Dept,.  Nov.,  1915;  155  N. 
Y.  Supp.  1127;  (without 
opinion)    24,  82,  102 

Nolan,  Matter  of  vs.  Cranford 
Co.,  Claim  No.  54558,  4 
N.  Y.  St.  Dep.  Rep.  337; 
AfF.  156  N.  Y.  Supp.  1128 
(without   opinion)     93 

Noonan,  Edgar  J.,  vs.  Yellow 
Taxicab  Service,  Claim  No. 
14486,  St.  Ind.  Com., 
March  13,   1916 109 

Norfolk  &  West.  R.  R.  vs. 
Earnest,  229   U.  S.   114..     41 

Norman,  Matter  of  vs.  Empire 
Lighterage  Co.,  2  N.  Y. 
St.   Dep.   Rep.   480 96 

No.  Carolina  R.  R.  vs.  Zach- 
ary,  232   U.   S.  248 41 

No.  Pacific  Railway  Co.  vs. 
Mary  A.  Meese,  239  U.  S. 
614;  206  Fed.  222;  211 
Fed.    254    47 

Norton,  Jas.  vs.  International 
Cork  Co.,  Claim  No.  64641, 
St.  Ind.  Com.,  Sept.  22, 
1916    118 


280  TABLE  OF  CASES 

O  PAGE 

PAGE  Pensabene  vs.  Auditore  Co.,  78 

Oberg,    Axel,    Matter    of    vs.  „     ^^^^,-/.^.^  • '  V 'A'*:;-     ®^ 

W.   J.   McRoberts   &   Co.,  P^tne,   Matter   of  vs.    Oneida 

St.    Ind.    Cora.,    Dec.    20,  Steel  PuUey  Co.,  165  App. 

1915,  (on  appeal) 78  Div.  661 ;  151  N.  Y.  Supp. 

O'Connell,  Matter  of  vs.  Mod-  807;  AfP.  215  N.  Y.  335 

ern  Machine  Tool  Co.,  St.  „,          „  ^^         ^           ^     P^'  137 

Ind.  Com.,  Feb.  26,  1916.  122  P^ass,    Matter   of   vs.    Central 

O'Connor,  Tillie,  Matter  of  vs.  ^-  ?•  of  New  Eng.,  4  N. 

Harper    &    Bros.,    Claim  Y.  St.  Dep.  Rep.  351 ;  169 

No.   9028,    St.    Ind.    Com.,  App.  Div    826;  155  N.  Y 

Dec.  22,   1916 104  „      ^"P?;  5^*    •; .....33,99 

Okrzsezs,  Matter  of  vs.  Lehigh  Pogue,  Matter  of  vs.   Nassau 

Valley     R.    R.    Co.,     170  Light  &  Power  Co.,  1   N. 

App.  Div.   15;   165   N.  Y.  „      Y.  St.  Dep.  Rep.  429 . . . .   105 

Supp.   919    169  Pos*^»    Matter    of    vs.    Burger 

Olsen,  Julius,  deceased.  Matter  ^^J^^}^}^%  ^^r   ^^^'  B!j* 

of     vs.     State     Insurance  403;  163  N.  Y.  Supp.  506; 

Fund,  Work.  Comp.  Com.,  216  N.  Y.  544. 

April  27,  1915                       .     96  ^'  64,  65,  68,  94,  112,  146,  147 

Omaha    &    Council    Bluffs    vs.  Powley,  Matter  of  ys.  Vivian 

Int.    St.    Commerce    Com.,  &  fo.,  169  App.  Div.  170; 

230  U.  S.  324 43  164  N.  Y.  Supp.  426. . .  .44,  96 

O'Neil,   Matter   of   vs.    Carley  Pranio,  Matter  of  vs.  Peloso, 

Heater     Co.,     Claim     No.  ^^'^  ^o.   5539,  A ff.   155 

12421,   The   Bulletin,   Vol.  „  .  N.  /.  Supp.  1135. 80 

1,  No.  1,  p.  11;  Aff.  March  Pntz,  Matter  of  vs    Baumont, 

8    1916,  App.   Div.  Third  Claim  No.  39670;   154  N 

.  Dept.      without      opinion;  Y.    Supp.    1140     (without 

( N  .Y.  Supp.  )  .   102  „      opinion)     ... .35,  95 

O'Neil,    Matter    of    vs.    West  Prentiss,    Lamont    vs.    N.    Y. 

Side    Storage    Warehouse,  ^^^K^^l^^^^I  ^''V  £^**™ 

(decided    with    Feinman)  go.  29483    St.  Ind.  Cora., 

170    App.    Div.    147;    166  Nov.  16,  1915 116 

N.  Y.  Supp.  909 121 

O'NeiU,  Chas.  vs.  Booth  Thea-  " 

tre.  Claim  No.  50284,  St.  „     .,.         t,                  t^       . 

Ind.  Com.,  Nov.  29,  1916. .     91  RacMm,     Ike     vs.     Danziger 

Paint  Co.,  St.  Ind.  Com., 
June  80,  1915,  Claim  No. 

P  647«4    101 

Ramsey,  Matter  of  vs.   Fair- 
Parsons,  Matter  of  vs.  Del.  &  banks,  Morse  &  Co.,  Claim 
Hudson  R.  R.  R.  Co.,  167  No.  6622,  165  N.  Y.  Supp. 
App.  Div.  636;  158  N.  Y.  1186  (no  opinion).  11,  128,  188 
Supp.  179  42,169  Rheinwald,      Matter      of      vs. 

Partridge,  Matter  of  vs.  Nor-  Builders   Brick  &  Supply 

wich   Pharraacal  Co.,  The  Co.,  1  N.  Y.  St.  Dep.  Rep. 

Bulletin,  Vol.  1,  No.  8,  p.  417;    168   App.   Div.   425; 

10    108,   169  168  N.  Y.  Supp.  698. 

Paulsen,  Matter  of  vs.  Schul-  6,  44,  96,  187 

bohn,    5    N.    Y.    St.    Dep.  Rhyner,  Matter  of  vs.  Huber 

Rep.  112    82  Bldg.   Co.,  171   App.  Div. 

Pederson    vs.    Del.    Lack.    &  71;  166  N.  Y.  Supp.  908. 

West.    R.    R.,    229    U.    S.  6,  11,  117,  128,  134 

146    41  Rist,  Matter  of  vs.  Larkin  & 

Peers,  Matter  of  vs.  De  Carion  Sangster,    171    App.    Div. 

&  Co.,  The  Bulletin,  Vol.  108;  166  N.  Y.  Supp.  876. 

1,   No.  2,  p.   10 106  88,  107 


TABLE  OF  CASES 


231 


PAGE 

Rockwell,  Matter  of  vs.  Lewis, 
168    App.    Div.    674;    154- 
N.  Y.  Supp.  898 121 

Rodgers,  Frank  J.,  Matter  of 
vs.  Oceanic  S.  S.  Nav.  Co., 
St.  Ind.  Com.,  Jan.  26, 
1916    78 

Rodzborski  vs.  American 
Sugar  Refining  Co.,  210 
N.   Y.   262 208 

Rounsaville  vs.  Central  R.  R. 
Co.,  94  Atl.   Rep.  892.  .86,  40 


St.  Louis  S.  F.  &  T.  R.  R.  R. 
vs.   Scale,   229    U.    S.    156    41 

Sala,  Matter  of  vs.  Martarella 
&  Giannessi,  File  No.  7165, 
The  Bulletin,  Vol.  1,  No. 
6,   p.    11 78 

Sauter,  George,  Matter  of  vs. 
N.  Y.  Central  R.  R.  Co., 
St.  Ind.  Com.,  Oct.  20, 
1916   75 

Schwab,  Matter  of  vs.  Em- 
porium Forestry  Co.,  167 
App.  Div.  614;  153  N.  Y. 
Supp.  234;  Aff.  216  N.  Y. 
Memo.    712    li9 

Schwitzer  vs.  Hamburg-Ameri- 
can Line,  149  App.  Div. 
900;  s.  c.   78  Misc.  448..     86 

Scott,  Matter  of  vs.  Salvation 
Army,  Work.  Comp.  Com., 
April  80,  1915 98 

Second  Employers  Liability 
Cases,  228  U.  S.  1....41,  217 

Secor,  Mary,  Matter  of  vs.  Jas. 
A.  CuUin,  Jr.,  Claim  No. 
81770,  St.  Ind.  Com.,  July 
26,  1915    76 

Shanahan  vs.  Monarch  Eng. 
Co.,  156  N.  Y.  Supp.  143. 

28,  114,  128 

Shanks  vs.  Del.,  Lack.  & 
West.  R.  R.  Co.,  (Jan., 
1916),  36  Sup.  Ct.  Rep. 
188;    (214  N.   Y.  413)  .  .41,  76 

Shinnick  vs.  Clover  Farms  Co., 
169  App.  Div.  236;  154 
N.  Y.  Supp.  423;  s.  c.  152 
N.  Y.  Supp.  649. 

26,   62,   114,   122 

Sickles,  Matter  of  vs.  Ballston 
Refrig.  Co.,  171  App.  Div. 
128;  156  N.  Y.  Supp.  864. 

18,  83,  93 


PAGE 

Sieplenska,  Matter  of  vs.   N. 

Y.  C.  R.  R.  Co.,  4  N.  Y. 

St.  Dep.  Rep.  895 108 

Skozylois,  Stanislaw,  deceased, 

vs.  Phillip  Vinocour,  Ihe 

Bulletin,  Vol.  1,  No.  6,  p. 

14    149 

Sloat,    Warren,    deceased,    vs. 

Rochester     Taxicab     Co., 

File    No.    14084,    St.    Ind. 

Com.,  May  12,  1916 109 

Smart,    Wm.     H.    vs.    Cruss, 

Kemper    Co.,    Claim    No. 

67008,  St.  Ind.  Com 101 

Smith  vs.  Industrial  Ace.  Com. 

147  Pac.  Rep.  600 40 

Smith,  Matter  of  vs.  Price,  1 

N.  Y.  St.  Dep.  Rep.  421; 

168    App.    Div.    421;    158 

N.  Y.  Supp.  221  86,  187 

Smith  Dock  Co.  vs.  Readhead, 

6   B.  W.  C.  C.  449 47 

SoUe,  Matter  of  vs.  N.  Y„ 
N.  H.  &  H.  R.  R.  Co.,  4 
N.  Y.  St.  Dep.  Rep.  492. .  103 

Sorensen,  Matter  of  vs.  South- 
ern Pacific  Co 76 

Sorge,  Matter  of  vs.  Alder- 
brun  Co.,  3  N.  Y.  St.  Dep. 

Rep.  390,  Aff.  N.  Y. 

;    (Court  of  Appeals, 

May    2,    1916,    no    opin- 
ion)      108 

Stadmuller,  Matter  of  vs. 
George  Ehret,  The  Bul- 
letin, Vol.  1,  No.  4,  p.  9. .  166 

Staley  vs.   111.   Central   R.   R. 

Co.,   109   N.   E.   342 40 

Stanley,  Matter  of  vs.  Wood 
&  Dolson  Co.,  The  Bul- 
letin, Vol.  1,  No.  4,  p.  10  108 

State  ex  rel  Jarvis  vs.  Daggett, 

161  Pac.  Rep.  648 88 

Stein,  Louis,  Matter  of  vs. 
John  Wegman,  File  No. 
6643,   St.   Ind.   Com 104 

Sterling,  Matter  of  vs.  West- 
ern Union  Tel.  Co.,  The 
Bulletin,  Vol.  1,  No.  8,  p. 
10    87 

Sullivan,  John  L.,  Matter  of 
vs.  Church  E.  Gates  &  Co., 
Claim  No.  460,  Work. 
Comp.  Com.,  Dec.  8,  1914  110 


232 


TABLE  OF  CASES 


Sullivan,  Michael,  deceased,  vs. 
Industrial  Engineering 
Co.,   Claim   No.   671;   Aflf. 

App.     Div.     ; 

N.    Y.    Supp.    , 

(May    2,    1916) 108 

Surfass,  John  H.  vs.  American 
LaFrance  Fire  Engine 
Co.,  Claim  No.  65428 100 


Thomas    vs.    B.    &    M.    R.    R. 

Co.,  218  Fed,   Rep.  143..     42 

Thompson  vs.  N.  E.  M.  Co., 
6  W.  C.  C.  71 46 

Tirre,  August,  deceased.  Mat- 
ter of  vs.  Bush  Terminal 
Co.,  File  No.  675;  re- 
versed          App.     Div. 

;    N.     Y.     Supp. 

,   (May  2,  1916). 

76,  126,  129 

Tomassi,  Matter  of  vs.  Chris- 
tensen,  171  App.  Div.  284; 
166  N.  Y.  Supp.  905. 

.     68,  68,  73,  77,  82,  91,  136 

Tracy,  Wm.  H.  J.,  vs.  De 
Laval  Separator  Co., 
Claim  No,  13733,  St,  Ind. 
Com.,  Jan.  18,  1916 101 

Tremberger,    Chas.,    deceased. 

Death  File  No,  394 110 

Trim    Joint    Dist.    School    vs. 

KeUey,  7  B.  W.  C.  C.  274      9 

TuroflF,  Sol.,  vs.  Archer  De- 
tective Agency,  Claim  No. 
8567,  St.   Ind,   Com 94 


U 


Ulrich,  Matter  of  vs.  Lenox 
Coat,  Apron  &  Supply 
Co.,  166  N.  Y.  Supp. 
1145    99 

Underwood,  Matter  of  vs.  Int. 
Elevating  Co.,  Claim  No. 
47205;  Workmen's  Com- 
pensation   Commission.  .37,  76 

U.  S.  vs.  Bait,  &  Ohio  S.  W. 

R.   R,  Co,,  226    U,  S.   14    48 

U.  S.  Fid.  &  Guaranty  Co.  vs. 
N.  Y.  Railways  Co.,  Sup. 
Ct.  App.  Term,  Jan.,  1916; 
156  N.  Y.  Supp.  616. . .  .46,  148 

U.  S.  Mutual  Accident  Assn. 
vs.  Barry,  181  U.  S.  100.       9 


Valentine,  Matter  of  vs.  Smith, 
Angevine  Co.,  2  N,  Y,  St. 
Dep.  Rep,  461;  168  App, 
Div.  403;  153  N.  Y.  Supp. 
605;  Aff.  216  N.  Y.  644,. 34,  94 

W 

Wagner,  John  H.,  Matter  of. 
Claim  No,  6230 31 

Waite,  Matter  of  vs,  Penn, 
R,  R,  Co.,  Claim  No, 
12636,  166  N.  Y,  Supp, 
1149,    (without  opinion) . ,   169 

Walker  vs,  Clyde  S.  S,  Co., 
Matter  of,  216  N,  Y.  529, 

38,  77,  168 

Walker,  Matter  of  vs,  M.  Mos- 
som  Co.,  8  N.  Y.  St.  Dep, 
Rep,  362 -. 86 

Walz,  Matter  of  vs.  Holbrook, 
Cabot  &  Rollins  Corp., 
170  App.  Div.  6;  165  N. 
Y.  Supp.  703 11,  128 

Waters,  Matter  of  vs,  W.  J, 
Taylor  Co.,  164  N,  Y. 
Supp.  1149,  (no  opinion) ; 

AfiF. N.  Y. ,  May 

12,   1916    108 

Watters,  George  vs.  Francis 
E.  Fitch  Co.,  Claim  No. 
71773,  St.  Ind.  Com.,  Sept. 
27,  1916    100 

White,  Matter  of  vs.  N,  Y. 
Central  R.  R,  Co,,  Claim 
No.  81018,  2  N.  Y.  St. 
Dep.  Rep.  477;  Aff.  216 
N.  Y.  Memo  668 74,  169 

White,  Jas.  vs.  Cruss,  Kemper 
Co.,  Claim  No.  14847,  St. 
Ind.   Com,,   Jan.    19,   1916  106 

Wigmore,  Dan'l  J.,  deceased, 
vs.  City  of  New  York, 
Dept,  of  Docks  &  Ferries, 
Work.  Comp.  Com.,  Feb, 
8,    1916    98 

Wiley  vs,  Solvay  Process  Co,, 
216  N.  Y.  584 207 

Williams,  Matter  of  vs.  Elec- 
tric Carbon  Co.,  4  N.  Y. 
St.    Dep.    Rep,    439 180 

Williams,  Thos.,  Matter  of  vs. 
Messerau  Metal  Bed  Co,, 
Claim  No,  38318,  Work. 
Comp.  Cora.,  May  12,  1916    97 


TABLE  OF  CASES 


233 


WUson,  Matter  of  vs.  Dor- 
flinger,  170  App.  Div.  119; 
165  N.  Y.  Supp.  857; 
Reversed  218  N.  Y.  84 
(Ct.  of  Appeals,  April 
25,   1916)    18,  74,  86 

Winfield,  Matter  of  vs.  N.  Y. 
Central  R.  R.  Co.,  168 
App.  Div.  351;  153  N.  Y. 
Supp.  499;  216  N.  Y.  284. 

40,  52,  74,  169 

Winters,  Matter  of  vs.  N.  Y. 
Herald  Co.,  Claim  No. 
4475,  AfF.  155  N.  Y. 
Supp.  1149  (without  opin- 
ion)        103 

Winters     vs.     Peter     Doelger 

Brewing    Co.,    Misc. 

;    N.    Y.    Supp. 

,      (Sup.     Ct.,     App. 

Term,  May,  1916) 143 

Woodcock,  Matter  of  vs. 
Walker,  170  App.  Div.  4; 
155  N.  Y.  Supp.  702 127 


Woodward,  Matter  of  vs.  E. 
W.  Conklin  &  Sons,  Inc., 
App.  Div.  Third  Dept., 
March  8,  1916,  (opinion 
by  Cochrane  and  Wood- 
ward,   JJ.)     157     N.     Y. 

Supp.  948; App.  Div. 

47,   142,  145 

Workman  vs.  New  York  City, 

179  U.  S.  552 88 


Yume,  Matter  of  vs.  Knicker- 
bocker Portland  Cement 
Co.,  Claim  No.  16210,  3 
N.  Y.  St.  Dep.  Rep. 
353;  Aff.  without  opinion, 
163  N.  Y.  Supp.  1151; 
App.  diss.  216  N.  Y. 
Memo.  663 9,  100,  101 


Ziegler,  Matter  of  vs.  P.  Cas- 
sidy's  Sons,  Claim  No. 
68081,  AflF.  155  N.  Y.  Supp. 
1151,    (without  opinion)  . .  127 


GENERAL  INDEX 


GENERAL   INDEX 


[references  are  to  pages] 

Abandoned  instrumentalities  of  interstate  commerce i2 

Accident,  see  Accidental  Injuries 

Accident,  defined    8,  9 

Accident,  notice  to  employer  of 180 

Accidental  injuries,  defined 8,  9 

Accidental  injuries,  alone  compensated 82 

Accidental  injuries,  what  are 8,  9 

See  also  "Diseases  resulting  from  Accidental  Injuries" 

anthrax 88,  99 

assault    9,  100,  107 

diseases  resulting  from 107 

exhaustion  from  overwork 88 

drowning    76,  102 

freezing    88,  99 

gangrene    104 

heat  prostration  from  boiler 100 

hernia    '. 99 

heart  disease 107 

infection  from  germ,  through  skin 38,  99 

insanity,  when    83,  99 

lightning    100 

nervous  shock  88,  99 

poison  ivy    88,  99 

poisonous  fumes    100 

pneumonia  following  operation,  death  from 107 

pulmonary  tuberculosis  from  falling  into  water 82,  88,  107 

risk,  in  line  of  humanity 108 

rupture    99 

strain    99 

tetanus,  causing  death 107 

Accidental  injuries,  what  are  not 32,  33 

See  "Occupational  Diseases" 

ankylosis  of  joint 101 

anthrax     101 

beat  hand    101 

blood   poisoning   100 

injury   from  dust 100 

lead  poisoning 83,  101 

loss  of  vision 100 

self-inflicted    injuries 112 

Accidents,  report  of 180,  167 

Action  against  third  persons  for  negligence 46,  141 

See  "Negligence  of  third  party  causing  injury" 
Action  for  death    218,  219 

237 


238  GENERAI.  INDEX 

[befehences  are  to  pages] 

Action  for  penalty    189 

Action  to  recover  award 140 

Adjustment    of    claims 181 

Adjustment  of  premiums  in  State  Fund 161 

Administration  of  State  Fund 65 

Admiralty    jurisdiction 86 

optional   remedies 37,  77 

Adopted  child   110 

Advance  payments   184 

Aggravation  of  disease  by  accident 108 

Agreements  in  settlement  of  compensation 182 

Agreement  to  pay  cost  of  compensation  insurance 144 

Agreements  to  be  approved 182 

Agreements   setting    aside 182 

Aliens,  amount  of  compensation 129,  180 

Alterations    110 

Alternative  remedy   118 

Amendments  of  1916  as  to  liability 114 

Amount  of  compensation  for  death 11,  126 

Amputation   of   ear 26 

Animal,  attack  by 26 

Annotations,    (commencing)    78 

Annotations  of  definitions 91-111 

Annotations  of  groups 74-89 

Anthrax,    accidental   injury 83,  99 

Anthrax,  not  accidental  injury 101 

Apoplexy  109 

Appeals     6,  136,  187,  138 

limited  to  question  of  law 132,  138 

construction   of   statute,   upon 137 

to  Court  of  Appeals,  when  taken 136,  137 

consideration  of  English  decisions 137 

employer  in  State  Fund  cannot  appeal 66,  137 

rules  for    188 

exceptions  not  necessary 188 

examination  of  evidence  upon 138 

reversal  to  permit  examination  of  claimant 138 

reversal  for  further  evidence 188 

award  on  consent  affirmed 134 

reversal  for  lack  of  evidence 184 

arbitrary,  unfair  and  unreasonable  decisions 184 

decision  in  conflict  with  facts 184 

Appeal,   evidence   examined   on 138 

Appellate  Division,  Third  Dept.,  appeals  to 186 

rules  for  appeals 138 

Application  of  compensation   law    12,  73 

Application  of  law  to  industries,  rule  for 68,  78 

Application  of  statute    73 

rule  for    78 

benefits   limited    73,  91 

Arbitrary   decision   reversed 184 

Arbitration  Committee    182 

Arbitration  Committee,    powers    of 182 

Arbitration,  procedure   for   182 

Architects    18 

Arising  out  of  and  in  the  course  of  the  employment 8,  101 

Accident  must  both  arise  out  of  and  in  the  course  of 8 

"arising  out  of,"  defined 9 


GENERAL  INDEX  239 

[references  are  to  pages] 

Arising  out  of  and  in  the  course  of  the  employment  (continued). 

"in  the  course  of,"  defined 10 

time  of  beginning  or  stopping  work,  not  controlling 10 

entering  or  leaving  the  premises 10,  79,  108 

going  and  returning  from  work 10,  79 

foreman  assaulted  by  fellow  employees 101 

employee  assaulted  by  fellow  employees 101,  106 

riding  home  in  employer's  conveyance 10 

scuffle   over   horses 101 

taking  short  cut 104 

seeking  shelter  from  rain 102 

cleaning  motor  cycle 102 

eating  lunch  on  premises 104,  106 

protecting  wagon    102 

interruptions   in  employment 10 

drowning   102 

leaving  work  to  get  drink  of  water 108 

reporting  early  for  work 102 

leaving  work  to  relieve  nature 108 

leaving  subway    79 

taking  poison  by  mistake 102 

leaving  work  to  eat  meals 108 

falling  on  stairs    102,  104 

falling  on  floor    108 

falling  on  landing    78 

falling  from   building    108 

scope  of   employment 10 

helping  employee  of  another  contractor 108 

assault  by  Union  man 104 

claim  agent  injured  on  train 104 

disobedience   of   rules 112 

struck  by   automobile 104 

cut  by  glass  while  making  delivery 106 

emergencies,  acts  during 103 

having  watch   tested 106 

injury  in  toilet 106 

mailing  letter  after  work 106 

walking   on   railroad   track 106 

watchman  injured  on  track 74 

catching  ride    106 

fall  caused  by  disease 106 

street  risks   106 

frolicking,  accidents  caused  by 106,  107 

injury  to  traveling  salesmen 24,  26 

Artificial   limb,    fracture   of ,  106 

Assault,  as   accidental  injury 9,  100 

arising  out  of  the  employment 104 

not  arising  out  of  the  employment 106 

by    Union    man 104 

Assessments  against  employers  in  State  Fund 60,  61,  165 

Assessments  after  withdrawal  from  State  Fund 165 

Assignment   of   compensation   prohibited 144 

Association  for  accident  preventions 162 

Assumption   of   risk 208,  209 

abolished  as  defense,  when 118 

question    of    fact 209,  210 

in  action  at  common  law 209 

Attacks,  see  Assaults 


240  GENEEAL  INDEX 

[references  are  to  pages] 

Attending  call  of  nature 79,  108 

Attorney,  appearance  before  commission 168 

Attorneys'  fees,  subject  to  approval 188 

Audit    of    payrolls 165 

Award,   how   made 6,  182 

Award,  may  be  made  on  hearsay  evidence 166 

Award,  appeal  from 186 

Award  final  when  6.  182 

Award  review   of    6,  186 

Award,  modification   of    186 

Award,  copy  to  be  served 182 

Award  of  compensation  bars  suit  against  third  party 144 

Award  on   consent   affirmed 184 

Award  of  industrial  Commission 182 

B 

Basis  for  computing  compensation 11,  116 

Bastard  children  as  dependents 110 

Beat   hand,   not   accidental 101 

Benefits  of  statute   limited 78,  91 

Benefits,  death   126,  181 

See  "Death  Benefits" 

Beveling  glass   80 

Bicycle,  used  in  work 102 

Blood  poisoning,  when  not  accidental 100,  108 

Board  and  lodging,  included  in  wages 110 

Boat  club    98 

Brakeman  shifting  cars 42 

Burial  expenses    11,  126 

Burns,  injury  from 108 

Buyer  for  wholesaler,  not  covered 91 

Buying  and  selling  fruit 88 


Cancellation  of  insurance  contract 148,  149 

Cancer    108 

Captain  assisting  in  unloading  vessel 76 

Car  shops    75 

Caring   for   horse 86 

Carpenters,  employed  casually 22,  88 

Casual  employees   22,  88,  96 

Casual  employments    22 

Catching   ride 106 

Charitable  institutions,  exempted 19 

Chauffeurs     19 

Chauffeurs,  private,  exempted 19 

Child,   defined    110 

Children,  under   18    11,  126 

Children,  illegitimate     110 

Churches    19 

Claim  for  compensation,  when  made 181,  141 

Claims   for  compensation,  how  settled 182 

Claims,  determination  of 181 

See  "Determination  of  Claims" 


GENERAI.  INDEX  241 

[heferences  are  to  pages] 

Claimant  may  be  cross-examined '  • . .  183 

Classifications  of  industries 73-90,  195-201 

Classifications  of  risks  of  State  Fund 161 

Cleaning  glasses,  confectionery  store 81 

Clerical  help   29 

Clerk  unloading  vehicle » 86 

Clerk  working  in  interstate  commerce 41 

Clothing,  mfg.  of 84 

model   employed   in 84 

salesman  employed  in 84,  85 

piece  workers  at  home 85 

Clothing,  boys  and  girls 85 

Clubs    19 

Colleges    19 

Collection  of  premiums  in  State  Fund 165 

Commission  (see  "Industrial  Commission") 

Commissioner,  Deputy,  power  of 154 

Committee  of  Arbitration 182 

Common  law  defenses,    abolished    118 

Common  law  remedies,  superseded 113 

Common  law   wife 127 

Comparison  of  State  Fund  with  stock  and  mutual  companies 67 

(See  Part  II,  Sec.  27-30) 64,  62 

Compensatable   injuries,   defined 12 

"Compensation"  defined   < 99 

Compensation,   how  payable 139 

Compensation  to  aliens,  amount  of 130 

Compensation  for  death,  amount  of 11,  125 

Compensation  for  death,  to  whom  paid 125 

Compensation  for  death   126-131 

See  "Death  Benefits" 

Compensation  for  deficiency  141 

Compensation  for  disability,  amount  of 11,  118 

Compensation  for  disfigurement   123 

Compensation,  who  entitled  to 11,  125 

Compensation,  basis    of 116 

Compensation  claims,  how   settled 182 

Compensation  insurance 61 

under  subdivision  3 64 

compulsory    Ill 

method   optional    62 

Compensation,  agreement  to  pay 182 

Compensation  legislation,  history   of 4 

Compensation  schedules    118 

See  "Schedules  of  Compensation" 

Compensation  liability     Ill 

Compensation  liability    exclusive    6,  113 

Compensation,    liability    for Ill,  112 

Compensation   lien,   priority   of 145 

Compensation,  limitation  of  amount  of 124 

Compensation  security   for    61 

Compensation  may  be  reduced  or  suspended  when 136 

Compensation  Law: 

application  of   7 

plan    and    purpose 6 

employments  subject  to  the  act 7 

injuries  subject  to  the  act 8 

must  provide  a  remedy  to  be  exclusive 26,  28,  29,  82 


242  GENERAL  INDEX 

[heferekces  are  to  pages] 

Compensation  Law  (continued). 

constitutionality    4,  73,  170 

does  not  impose  a  burden  on  interstate  commerce 168 

history    of   legislation 4 

elective  provisions   4,  89 

follows  employees  of  vessels ,. 87 

application  to   railroad   employees 89 

application  to  vessels    87 

annotated    78 

liberally  construed  187 

Compensation  Law,  annotated    73 

Compensation  Law,  application  of   7,  78 

Compensation  Law  declared  constitutional 4,  73,  170 

Compensation  Law,  plan  and  purpose 6 

Compensation  Law  not  exclusive  unless  remedy  provided ....  27,  28,  29,  82 

Compromise  of  action  to  recover  penalty  and  award 140 

Compromise  of  action  against  third  party 142 

Compulsory,  act  is 4 

Compulsory  provision    (Sec.   10) Ill,  112 

Concurrent  awards  122 

Confectionery,  mfg.  of .- 81 

Conflicting  evidence  188 

Consecutive  awards    122 

Constitutional  amendment  authorizing  comp.  legislation 218 

Constitutional  questions   4 

partial  invalidity    170 

Constitutionality  of  Compensation  Law 4,  73,  170 

Construction,  questions  of: 

accident,    defined    8,  9 

"arising  out  of,"  construed 8 

"in  the  course  of" 8 

diseases,  when  accidental 107 

rules  for  interpreting  the  act 176 

Contractor  independent    48 

Contractor  employee  of 207 

Contributory  Negligence : 

abolished  as  defense,  when 118 

defense  to  be  pleaded  when 209,  210 

in  action  for  death 219 

Convej'^ances,  riding  in  employer's 10 

Co-partner,  employer,  when  not 98 

Costs   and    fees 188 

Court  of  Appeals,  appeals  to 186 

Court,  Supreme,  Appellate  Dlv,  Third  Dept.,  appeals  to 186 

Coverage — State  Insurance  Fund  67 

Creation  of  State  Fund 169 

Cross-examination  of  claimant 138 

Crossing  track,  subway  construction 79 

Custody  of  State  Fund 169 

Cutting  glass   80 

D 

Damages  against  third  parties 46,  141 

Damages  by  next  of  kin 28,  114,  128 

Damages  for  loss  of  services 82 

Damages  for  occupational   diseases    88,  34 


GfiNERAL  INDKX  248 

[bEFEBEKCES    ABE    TO    PAOEs] 

Death,  action  for   28 

Death,  constitutional   provisions    218 

Death,  action  for  under  code 219 

Death  Benefits   125-181 

funeral  expenses   126 

wife  married  subsequent  to  accident 126 

for  children,  how  paid 126 

common  law  wife 127 

Death,  compensation  for 11,  125 

Death  when  compensatable 107 

Death,  resulting    from    accident 107,  108 

Death,  not  resulting  from  accident 108 

Decision  of  Commission  final  on  question  of  fact. 132,  138 

Decision  of  Commission,  when  final 5,  132 

appeal   from    6,  186 

Decision  by  majority  of  Industrial  Board  suflScient 163 

Defense,  insurance   fund 210 

Defenses,  common  law  abolished 118 

Definitions  91-111 

Degree  of  dependency 128 

Delirium  tremens   107 

Delivery  on  foot 88 

Demolition    110 

Dependency : 

of  sister  and  parents 128 

on  minor   128 

of  mother  and  grandmother 128 

question  of  fact 11,  128 

degree  of 128 

what  constitutes    129 

"during  dependency"    129 

purchase  of  house,  contribution  for 129 

hearsay  evidence  does  not  establish 129 

where  deceased  is  a  minor .  .• 129 

Dependents  receiving  no  compensation  may  sue 28,  114,  128 

Dependents  of  unmarried  employee 128 

Dependents,  who  are 11,  125 

Depositing  future  payments 140 

present  value   141 

trust  fund  created 141 

with  State  Fund 141 

Depositions    167 

Deputy  commissioners,  powers  of 164 

Determination  of  claims 181-134 

Commission  final  on  question  of  fact 133 

conflicting  evidence    188 

evidence  examined  on  appeal 6,  188 

whether  any  evidence,  a  question  of  law 133 

cross-examination   of   claimant 188 

reversal  for  refusal  to  reopen  case 133 

award  by  consent  affirmed 134 

unfair  decision  reversed 184 

arbitrary  decision  reversed 184 

findings   without   evidence « 184 

Disability,  compensation   for 118 

Disability,  must  exceed  two  weeks 114 

Disability,  previous    124,  125 


24)4  GENERAL  INDEX 

[references  are  to  pages] 

Discharge  from  work,  injury  after 79 

Disease  causing  injury 106 

Diseases  resulting  from  accidental  injuries: 

anthrax 33,  99 

delirium   tremens    107 

insanity    83,  99 

heart  disease    107 

pneumonia    107,  108 

gangrene    104 

tetanus    107 

pulmonary  tuberculosis  107 

peritonitis    107 

pleurisy    108 

typhoid  fever  108 

cancer    108 

septicaemia    108 

poison  from  ivy 33,  99 

Diseases  when  not  accidental: 

blood   poisoning    .^ 108 

pneumonia  following  accident  to  arm .* 108 

apoplexy    : 109 

Diseases,  occupational  82 

See  "Occupational  Diseases" 

Disfigurement    26,  114 

Disfigurement,  compensation  for 123 

Disinfecting    stables    86 

Distinction  between  hazardous   and   non-hazardous   emplojTnents 20 

Distinction  between  interstate  and  intrastate  commerce 42 

Doctor: 
See  "Medical  Treatment" 

Domestic  servants   18,  94 

Doubtful  employments    16 

Driver   of   automobile 92 

Driver  in  non-hazardous  employments 91 

Drowning 102 

Drowning,   unexplained    76 

Drugs,  mfg.  of 82 

Druggists    18,  82 

Dual  employments   18 

Dual   liability — truck   drivers 14 

"During  dependency"   129 


E 


Ear,  amputation  of 26 

Ear,  loss  of,  damages  for 121,  122 

Earnings,  basis  of  compensation 116 

Earnings,  when  tips  are 109 

Election  of  remedies: 

for  failure  to  insure 118 

injury  on  navigable  waters  of  U.  S 87,  77 

negligence  of  third  parties 46,  141 

Election  to  come  within  act,  how  made 89 

Elective  act    4,  89,  210 

Elective  provision  of  compulsory  act 4,  89,  90 

Electric  meat  chopper 83 


GENEEAL  INDEX  245 

[references  are  to  pages] 

Elevators    18,  86,  87 

Elevators,  operation   of 87 

See  "Operation  of  Elevators" 

Emergencies,   acts   during 108 

Employee :  ^ 

defined    94 

injured  outside  the  state 

when  entitled  to  compensation 34,  94 

when  not  entitled  to  compensation 84,  94 

signing  false  statement  to  obtain  employment 95 

may  release  employer,  when 210 

when  not  a  co-partner 93 

of  contractor   207 

when  not  an  independent  contractor 95 

operating  a  dredge  under  lease 95 

independent  contractor,  when  entitled  to  compensation 95 

engaged  in  non-hazardous  employment 20,  95,  96 

casual    23,  88,  96 

police  officer   96 

officer  of  corporation,  when  an  employee 30,  96 

captain  of  vessel  leased  to  another 96 

operating  own  motor  boat ' 96 

repairing   farm   buildings 96 

employed  and  paid  by  another  employee 96 

operating   threshing   machine 97 

piece  workers  97 

of  foreign  states 35,  95,  97 

engaged  in  interstate  commerce 39,  168 

injured,  examination  of 181 

not  within  the  act 12 

recourse  to  insurance  contract 147 

refusal  to  submit  to  medical  examination 131 

all  in  affected  industry  not  covered 20,  25 

state    88,  89 

municipal    88,  89 

extra    117 

seven-day    116 

Employers : 

defined    92 

conducting    non-hazardous    employment 20,  92,  93 

general  and  special,  both  liable 15,  98 

liability  for  compensation  discharged,  how 147 

report  of  accident  by 167 

repairing  building,  not  liable  for  compensation 98 

of   truck   drivers 93,  94 

who  is,  a  question  of  fact 95 

furnishing  employees  to  another 94 

two  classes  subject  to  act 8 

conducting  both  hazardous  and  non-hazardous  employments 98 

hiring  truck,  liability  of 98 

when  not  a  co-partner 98 

municipal  corporations    88,  92 

state    88,  92 

information  to  be  furnished  by 167 

inspection  of  records 167 

may  be  sued  as  third  party  causing  injury 148 

Employers'  liability    for    injuries 206 

Employers'  Liability  Act  205 


246  GENERAL  INDEX 

[rei<erknces  are  to  pages] 

Employment : 

defined   97 

casual    22 

doubtful    16 

dua;    18 

exempted    18 

non-hazardous    20 

distinction  between  hazardous  and  non-hazardous 20 

seasonable    117,  124 

Employments  subject  to  the  Act 7 

Employments  exempted  by  the  act 18 

domestic  servants    18,  94 

farm  laborers    18,  19,  94,  98 

private  chauffeurs 19 

private   estates    19 

charitable  institutions   19 

hospitals    19,  98 

churches 19,  98 

clubs    19,  98 

schools    _. 19 

colleges    '. 19 

universities    19 

any  employment  not  conducted  for  pecuniary  gain 19,  97 

Embalming    91 

Enforcement  of  pajnnent  of  compensation 139 

English  decisions,  consideration  given 187 

Evidence,  rules  of 155 

Examination  of  injured  employee    181 

Examination  of  State  Fund  by  Insurance  Department 166 

Exceptions  unnecessary  on  appeals 188 

Exclusive  liability  118 

Exclusive  remedy   118 

Expenses  of  burial 125 

Expenses  of  administering  Compensation  Law 168 

Expenses  of  administering  State  Fund 160 

Extra  employees 117 

Extra-territorial  effect  of  compensation  law 84,  74 

Eye,  injury  to,  when  not  accidental 100 


Facts,  decision  contrary  to  reversed 184 

Fact,  question  of 
See  "Question  of  Fact" 

Facts,  failure  to  report,  eflFect  of 186 

Failure  to  insure,  effect  of 113,  146 

Failure  to  give  security  for  compensation 118,  146 

Failure  to  report    facts 185 

Falling  from  building  108 

Falling  caused  by  disease 106 

Falling  on  floor    108 

Falling  from  landing    78 

Falling  from  ship    76 

Falsification    of   payrolls 166 

Farm  accidents    19,  94 

Farm  building,  repair  of 96,  98 

Farm  laborers    19,  94 


GENERAL  INDEX  247 

[bEFEBENCES   ABE   TO   FAOES] 

Fault,  disregarded  in  compensation  legislation Ill 

Federal  Employers'  Liability  Act 220 

application  of   89 

See  "Interstate  Commerce" 

Fees  of  lawyers  and  doctors,  subject  to  approval 188 

Fees  and  mileage  of  witnesses 166 

Fellow  servants,  negligence  of 118 

Fellow  employees,  assaults  by 101,  106 

Findings  without  evidence • 184 

Fingers,  loss  of  use 120 

Fireman  working  in  interstate  commerce 41 

Foodstuffs,   preparation   of 18,  16,  88 

See  "Preparation  of  Meat  and  Foodstuffs" 

Foreign  employees    86,  96,  97 

Foreign  law  recognized  in  New  York 86 

Foreign  states,  employees  of 84,  95,  97 

Foreign  vessels  excluded   86 

See  "Operation  of  Vessels" 

See  "Longshoremen" 

Foreman  assaulted  by  employees 101 

Forms : 

See  "Rules" 

Forms,  Commission  to  furnish 167 

Freezing    38,  99 

Freight,  elevators   87 

Frolicking,  injuries   from 106,  107 

Frost  bite,  accidental 83,  99 

Fumes,  inhaling,  accidental  when 100 

Future  payments,  deposit  of 140 

G 

Gang  plank,  longshoreman  injured  on 77 

Gangrene  resulting  from  accident 104 

Garage    92 

Gases,  inhaling  poisonous,  accidental 100 

General  employer    15,  98 

Going  to  and  from  work 10,  79 

Glass  and  glass  products 80 

Grandmother  and  mother  as  dependents 128 

Grandparent  and  parent  both  dependent 11,  128 

Grounds  for  review  of  award  or  agreement 181,  186,  157 

Groups  of  hazardous  employments 74-89 

Rule  for  construction  of 78 

H 

Hand,  loss  of  use,  what  constitutes 121 

Handtruck,  operation  of 86 

Handy  man  employed  by  druggist 82 

Hazard,  basis  of  compensation  (Part  I,  Sec.  2) 6 

See  "Arising  out  of,"  etc. 
Hazardous  employments: 

groups     74-89 

alphabetical   list   of 195 

defined   '. 91 


248  GENEEAL  INDEX 

[rEFEBEXCES    ABE    TO    PAGES] 

Hazardous  employments   (continued). 

employments  added  in  1916 200 

operation   of   garage 92 

application  of  law  to  groups  of 78 

ice  harvesting    92 

lumber    yards    92 

what  is  not: 

embalming   91 

wholesale  dealer    91 

operation  of  theatres 91 

hotel    91 

undertaking    91 

repair  of  building,  casual 23 

Hazardous  employments  determined  by  Legislature 58,  68 

Hearsay  evidence  does  not  establish  dependency 129 

Hearsay  evidence,  award  based  on 156 

Heart  disease  from  overwork 107 

Heat  prostration  from  boiler 100 

Helper  on  vehicle 86 

Hernia    99 

Hiring  truck,  liability  of  employer 98 

History  of  compensation  legislation 4 

Horses,   care    of 86 

Horses,  dispute  concerning 101 

Horse  play,  accidents  caused  by: 
See  "Frolicking" 

Horse  shoeing   81 

Horse  shoers    17 

Hospital : 
See  "Medical  Treatment" 

not  conducted  for  pecuniary  gain 98 

Hotels   and  restaurants 91 

employees  preparing  food 88 

House,  purchase  of,  contribution  for 129 

Humanity,  risk  in  line  of 108 


Ice    harvesting    14,  77,  92 

Illegitimate   child    110 

Incidental  to  the  employment,  risk  must  be 6 

exposure  must  be  peculiar  to  the  work  ( Part  I,  Sec.  4) 8 

unusual  exposure  to  natural  hazards  (Part  I,  Sec.  4) 8 

See  "Arising  out  of,  etc." 

Incomplete  protection  of  State  Fund 67,  68 

Increase  of  wages  of  minor 118,  129 

Indemnity  agreement  must  cover  compensation 148 

Independent   contractors,   defined 48 

Independent  contractor,  when  an  employee 46 

Independent  contractor  may  sue  for  negligence 46 

Independent  contractor,  when  entitled  to  compensation 96 

Individual  grouping.  State  Fund 161 

Industrial  diseases   82 

See  "Occupational  Diseases" 
Industrial  Commission: 

award  by 182 

creation  and  organization  of 161 


GENERAL  INDEX  249 

[bEFEBEXCES    ABE    TO    PAOES] 

Industrial  Commission  (continued). 

decision  of  quorum  sufficient 163 

individual  commissioners,  powers  of 154 

jurisdiction  of  151 

may  determine  whether  insurance  policy  is  in  force 149 

may  make  rules 154 

may  examine  injured  workmen 181 

office  of   158 

powers  and  duties  of 151,  158,  154 

reports    157 

review  of  agreements  and  awards 182 

sessions  of 158 

Industries,  classification  of 74-89 

List  of  hazardous  employments 95 

See  "Hazardous  Employments" 

Infection,  accidental   88,  99,  108 

Injuries.    See  "Arising  out  of,  etc." 
See  "Accidental  Injuries" 

defined    8,  99 

schedule  of .118-125 

previous,  effect  of 124,  125 

caused  by  negligence  of  third  persons 141 

See  "Negligence  of  third  persons" 

death,  must  result  from 107 

resulting  in   disfigurement 26,  123 

resulting  in   death 107 

constitutional  provision    218 

code  provision   219 

subject  to  the  act 8 

three  requisites  must  exist 8 

accidental,  defined   8,  9 

for  which  no  compensation  is  provided 26 

received  outside  the  state 84,  94 

after  discharge  from  work 79 

Injury  to  the  eye  from  light 88,  100 

Injury  from  dust    33,  100 

Injury  to  traveling  salesman 24,  25 

Injuries  resulting  in  death 28,  107 

constitutional  provision    218 

code  provision   219 

distribution  of   damages 219 

contributory  negligence,   a  defense 219 

Injury  on  dock   77 

Injury  on  land 38,  77 

Injury  on  navigable  waters   88,  77 

Injury  on  shore    38 

Insanity,   when    accidental 33,  99 

Insolvency  of  emploj'^er  does  not  release  carrier 148 

Inspection  of  plants  of  employers  in  State  Fund 166 

Inspectors    18 

Installing  machinery,  salesman 80 

Insurance   Carrier    61 

Insurance  carrier,  defined 110 

Insurance  carrier  to  reimburse  State  for  expenses  of  Commission 158 

Insurance  by  mutual  companies   64 

Insurance  by  stock  companies   64 

Insurance  companies  liable  to  workmen,  when 147 

Insurance  of  medical  treatment    67 


260  GENEEAIi  INDEX 

[befesences  are  to  pages] 

Insurance  contract    51>  1*''' 

recourse  of  Commission l**/ 

knowledge  of  employer  binds  carrier 148 

insolvency  of  employer  does  not  release  carrier 148 

indemnity  agreement  must  cover  compensation 148 

cancellation    148,  149 

Industrial  Commission  may  determine  whether  policy  is  in  force..   149 

Intentional    injury    111>  112 

Intoxication    112 

In  the  course  of  the  employment: 
See  "Arising  out  of,  etc." 

"In  the  course  of"  defined 10 

Interpretation  of  the  act,  rule  for 68,  78 

Interruptions   in   work 10 

Interstate   Commerce    89,  75,  168 

what   constitutes   » 41,  42,  43 

leading  cases   41 

street  surface  railroads 48 

remedy  of  railroad  employees 89 

repair  shops   76 

employees  in,  are  subject  to  act 40,  168 

rule  for  determining  what  is 42 

burden  upon,  does  not  render  law  unconstitutional 168 

vessels  engaged  in 37,  168 

railroad  employees  engaged  in 40,  168 

street  railroads  may  be  engaged  in 43 

Interstate  Commerce,  what  is: 

repairing  loaded  car 41 

fireman   piloting   locomotive 41 

repairing    bridge     41 

clerk  checking  interstate  cars 41 

fireman  preparing  engine 41 

brakeman   shifting   cars 42 

Interstate  Commerce,  what  is  not: 

working  on  repair  shop 41 

switching  intrastate  freight 42 

working  in  coal  mine 42 

new    construction    work 42 

abandoned  instrumentalities   42 

repairing  cars    169 

switching  empty  cars 169 

working  on  new  telegraph  line 169 

watchman  on  new  construction  work 169 

taking  inventory   169 

Intrastate  Commerce 

See  "Interstate  Commerce" 

Invalidity  of  portion,  not  to  affect  whole  act ^ 170 

Investment  of  surplus  of  State  Fund 160 


Janitors    80 

operating  boiler 80 

chopping  wood    81 

Janitor  engaged  in  mechanical  work 88 

Judgment,  award  may  be  docketed  as 140 


GENERAL  INDEX  251 

[refeeekces  are  to  pages] 

Jurisdiction  of  Commission: 

modification  of  award 186 

upon  medical  services 116 

continuing    157 

see  "Appeals,"  "Questions  of  Fact" 

K 

Knowledge  of  employer  binds  carrier 148 

L 

Labor  law  article,  Article  14 205 

Elective   compensation   provisions 210-215 

Labor  Law  violations 54 

Land,  in  jury  on  88,  77 

Land,  longshoreman  injured  on 77 

Law,  question  of 188 

may  be  certified  to  Appellate  Division 186 

appeal  may  be  taken  on 186 

Lead  poisoning,  not  accidental 83,  101 

Leaving  premises    10,  79,  103,  104 

Legal  representative    114 

Legal  services 188 

Liability   for   compensation Ill,  112 

Liability,  dual — truck   drivers 14 

Liability,  exclusive  118 

Liability  of  employer,  discharged  how 147 

Liberal  construction  of  statute 187 

Lien,  compensation  prior 145 

Lien  for  legal  services   188 

Lien  for  medical  services , 138 

Lightning,  accidental  100 

Limitation  of  amount  of  compensation 124 

Limitation  of  right  to  compensation 141 

List  of  hazardous  employments 196 

Lodging  and  board  included  in  wages 110 

Loss  of  arms,  hands,  legs,  etc 119 

Loss  of  ear,  damages  for 121,  122 

Loss  of  services    82 

Loss  of  use  of  finger,  compensation  for 120,  121 

Loss  of  use  of  hand,  what  constitutes 121 

Longshoremen    77 

optional   remedies  87 

sorting  refuse    77 

injured  on  vessel    77 

injured  on  land    77 

injured  on  gang  plank  77 

ice  harvesting,  not  longshore  work 77 

loaned  to  another  firm 78 

watching  cargo    78 

watching  boats    78 

Longshore   work 76 

See  "Operation  of  vessels" 

Lumber  yards 92 

Lunch,  injury  while  taking 104,  106 


252  GENEEAIi  INDEX 

[references  are  to  pages] 

Lump  sum  settlements 140 

for  aliens    129 

M 

Machinery,  salesman   installing 80 

Mailing  letter  after  work 105 

Manager  of  hotel 91 

Marriage  after  accident 126 

Master  and  servant,  liability  between 205 

Maximum  compensation  124 

Meals,  leaving  work  to  eat 108 

Meals  on  premises 104,  106 

Meat,  preparation  of 17,  83 

See  "Preparation  of  Meat  and  Foodstuffs" 

Mechanics  employed  casually 28 

Medical  examination   181 

rule  for   178 

Medical  services,  lien  for 188 

Medical  treatment 115 

jurisdiction  of  Commission 116 

physician,  designation  of 115 

physician  cannot  sue  employer 115 

suit   by   hospital 116 

Medical  treatment,  insurance  of 57 

Method  of  computing  compensation 116 

Mining    96 

Minimum  compensation    124 

Minors    64 

Minor,  increase  of  wages  considered 1 18,  129 

Minor,  limitation  does  not  run  against 170 

Minor  may  make  election  to  come  within  act 90 

Minor  may  elect  to  sue  third  party 47 

Minor,  parents  dependent  upon 128 

Minor  children,  compensation,  how  payable 126 

Misdemeanor: 

failure  to  give  security  for  compensation 146 

misrepresentation  to  obtain  State  insurance 165 

disclosing  information  166 

Misrepresentation  to  obtain  insurance  in  State  Fund 165 

Model  employed  in  manufacture  of  clothing 84 

Modification  of  award 186 

Mother  and  grandmother,  both  as  dependents 128 

Motorcycle,  injury  while  cleaning 102 

used  in  work ; 102 

Municipal  corporations   88,  89,  98 

Municipal  employees 88,  89 

Mutual  insurance   64 

N 

Navigable  waters,  injury  on 88,  77 

Negligence  of  third  persons 46,  141 

rule  for  election  of  remedies 189 

employee  may  elect  to  sue  or  take  compensation 141 

release  of  third  party  does  not  bar  compensation 142 


GENEBAIi  INDEX  253 

[references  are  to  pages] 

Negligence  of  third  persons  (continued). 

employee  may  sue  third  party  without  complying  with  compensation 

law 142 

minor  workman  may  make  election 143 

opposite  elections  by  diflferent  dependents 148 

when  employer  may  be  sued  as  third  party 143 

award  of  compensation  bars  suit  against  third  party 144 

compensation  for  deficiency 141 

compromise  of  suit 142 

(See  Part  I,  Section  24,  p.  45) 

Negligence,  contributory  208,  210 

See  "contributory  negligence" 

Negligence,  disregarded  in  compensation  legislation Ill 

Negligence  of  fellow  servants 113 

Negligence,  not  controlling 118 

Nervous  shock,  when  accidental 88,  99 

New  construction  work 42 

New  York  amendment  to  constitution 218 

Non-hazardous   employments    20 

See  "Hazardous  emplojTnents" 

Notice  of  accident  to  Commission 180 

Notice  of  accident,  failure  to  give  may  be  excused 180 

Notice  of  decision  of  Industrial  Commission 132 

Notice  of  claim   for  compensation 181 

Notice  regarding   compensation,   posting 146 

Notice  to  employer   of  accident 180 

Notice  of  hearing,  rule  for 177 

Notice  of  injury,   when   waived 180,  181 

Notice  under  Employers'  Liability  Act 207 

identification  of  accident 208 

defective,    effect    of 208 

sufficiency  of   208 

waiver  of 208 

O 

Occupations,  law  applies  only  to  hazardous 8,  78 

Occupational  diseases   82 

what   are: 

cramped    hand    101 

lead  poisoning   82,  83,  101 

joint  stiffened    101 

injury  to  eye  from  light 33,  100 

injury  from  dust 33,  100 

what  are  not: 

freezing    83 

poison  ivy   83 

anthrax    33 

exhaustion    from   overwork 33 

damages  may  be  recovered  for 33,  34 

Office  of   Industrial   Commission 158 

Office  buildings,  see  "Office  Employees" 

Office  employees    29 

are  not  engaged  in  manufacturing  work 30 

Officers   of  corporations 30,  96 

driving  automobile   92 

when  entitled  to  compensation 31 

when  an  employee 96 


254  GENERAL  INDEX 

[refebences  are  to  pages] 

Operation,    death    following 107 

Operation  of  elevators 80,  87 

superintendent  of  building 87 

watchman    87 

using  freight  elevator 87 

operator  falling  on  stairs 87 

Operation  of  vehicles 19,  86 

stableman    85 

caring  for  horse 86 

disinfecting   stables    86 

loading  and  unloading  wagon 86 

helper   86 

porter  operating  hand  truck 86 

delivery  on  foot 86 

clerk  unloading  86 

elevators  are  not  included  within 86 

traction  engine    97 

Operation   of   vessels 86,  87,  76,  76 

optional   remedy   of  employees 87 

dual  liability  of  employers 88 

longshore  work  is  not '. 76 

captain  assisting  in  unloading 76 

of  foreign  state 76 

oiler  on  foreign  vessel 76 

sharing  profits  76 

unexplained    drowning    76 

wife  of  captain,  services  of 76 

falling  from  landing 78 

Optional  remedy  of  longshoremen    87 

Optional  remedy  of  employees   of  vessels 87 

Optional  remedy  where  employer  is  not  insured 118 

Optional  remedy,  injury  caused  by  third  party 45,  141 

Optional  method  of  insuring 146 


Painter    95,  98 

Pain  and  suflFering,  action  for 27 

Parent  dependent  upon  minor 11,  128 

Parents  and  grandparents,  both  dependent 11 

Parents  and  a  sister  as  dependents 11,  128 

Partial   permanent   disability 119 

Partners    76,  98 

Payments,   advance    184 

Payments  of  compensation,  how  made 189 

Payment  of  expenses  of  State  Fund 160 

Payment  of  premiums  in  State  Fund 164 

Pecuniary  gain: 

casual  repairs  not  conducted  for 22,  24 

employments  not  carried  on  for,  excluded 18,  19,  97 

wholesaler  is  not  conducting  storehouse  for 97 

hospital  not  conducted  for 98 

Salvation  Army  not  conducted  for 98 

municipal  corporations  not  engaged  in  business  for 98 

repair  of  farm  buildings  not  conducted  for 98 

boat  club  not  operated  for 98 

how  determined    19 


GENERAL  INDEX  255 

[beferekces  are  to  pages] 

Penal  Law,  violation  of  to  obtain  employment 96 

Penalties  for  failure  to  pay  compensation 139 

Penalties  for  false   representation    170 

Penalties  for  falsifying  payroll  165 

Penalties  for  misrepresentation  to  obtain  State  insurance 165 

Penalties  for  violation  of  the  act 5,  146 

Penalties,  waived   when    146 

Penalties  to  apply  on  expenses  of  Commission 166 

Penalties  for  disclosing  information    166 

Peritonitis,  following  accident 107 

Permanent   total   disability i..  125 

Personal  Assaults: 
See  "Assaults" 

Personal  injury  defined 99 

Phalange,  loss  of  part '. 120 

Physical  examination  of  injured  employee 181 

Physician: 
See  "Medical  Treatment" 

Physician,    designation    of 116 

Physician   cannot    sue   employer 115 

Physicians'  fees  subject  to  approval 115,  138 

Physicians'  services  for  injured  workmen 115,  138 

Piece  workers    97 

Piece  workers  at  home 86 

Pile  driving    78 

Plan  and  purpose  of  Compensation  Law 5 

Plant  defined 207 

Pleurisy    108 

Pneumonia  resulting  from  accident 107,  108 

Poison  ivy   83,  99 

Poison  taken  by  mistake 102 

Poisonous   gases    100 

Police  officer  96 

Police  power 118 

Porter  operating  hand  truck 86 

Posthumous  child   110 

Powers  of  individual  commissioners 154 

Powers   of   secretary 154 

Preferences   145 

Premises,  employee  residing  on 104 

Presumptions    135 

failure  to  report  facts 135 

evidence  of  accident  to  create 135 

effect  of   135,  136 

Previous   disability    124,  125 

Previous  disease,  aggravation  of 108 

Preparation  of  meat    17 

Preparation  of  foodstuflFs    13,  16 

Preparation  of  meat  and  foodstuffs 16,  83 

does  not  include  hotels,  restaurants  and  domestic  servants 83 

electric  meat  chopper 83 

retail   meat    markets 83 

delivery  on  foot 83 

ice   harvesting   for 84 

Present  value  of  award 141 

Private  chauffeur   19 

Private  estates  19 

Procedure  under  the  act ^ 181,  163 


256  GENEEAL  INDEX 

[referekces  are  to  pages] 

Procedure,  rules  for 176 

Procedure  before    arbitration    committee 182 

Procedure  of  Commission,  manner  of 155 

Property  man  in  theatre 91 

Protecting    wagon    102 

Public   liability    55 

Pulmonary  tuberculosis 107 

Punishment  of  witnesses 156 

Purchase  of  house,  contribution  for 129 

Purchasing  and  sales  agent,  not  covered 25 

Questions  of  fact: 

determination  of  loss  of  use 121 

determination  of  employer    94 

decision   of  commission  final 5,  182,  183 

dependency   is    11,  128 

determination  of  wages 118 

assumption  of  risk 208,  209 

Questions  of  law: 

appeals    limited    to 132,  183 

may  be  certified  to  Appellate  Division 136 

arbitrary  decision,  reversed  as - 184 

where  no  evidence  to  support  findings 138,  134 

R 

Railroad  employees 89,  74,  168,  169 

when  entitled  to  compensation 39,  40,  43 

testing  watch  74 

watchman  struck  by  train 74 

See  "Interstate  Commerce" 

Railroad  employees  engaged  in  interstate  commerce 40,  168 

Railroad  Law,  Section  64   216 

Railroad  Law,  action    under    216 

Railroad  Law,  application   of    217 

Railroad  Law,  superseded  when   217 

Rain,  injury  while  seeking  shelter  from 102 

Reaching  street  from  subway 79 

Readjustment  of  rates  in  State  Fund. 60 

Recourse  of  Commission  to  insurance  contract 147 

Release  from  payment  of  compensation * 59 

Release  of  compensation   prohibited    144 

Release  of  employer  in  State  Fund 59 

Release  from    liability    147 

Release  of  third  party  does  not  bar  compensation 142 

Release  of  third  party  by  employee,  effect  of 142 

Relief  associations   144 

Relieving  nature  79 

Religious  corporations,  as  employers 19 

Remedies,  common  law  and  statutory  superseded 118,  114 

Remedies,  election  of 

for  failure  to  insure 118 

injury  on  navigable  water  of  U.  S 38,  77 

negligence  of  third  parties 45,  141 

Rent,  included  in  "earnings" 110 

Re-open  case,  reversal  where  Commission  refuses 138 

Repair,  included  with  manufacture,  construction,  operation  and  instal- 
lation       110 


GENERAL  INDEX  257 

[referekces  are  to  pages] 

Repairs,  casual   28 

Repair  of  buildings  98 

Repair  shops    75 

Repairing  bridge    41 

Repairing  loaded  car 41 

Repeal   of   acts 170 

Report  of  accidents  by  employers 167 

Report  of  State  Insurance  Fund 166 

Requirements  in  classifying  employments  in  State  Fund 162 

Requirements  for  adjusting  rates  in  State  Fund 162 

Respondeat    superior    118 

Review   of   agreements 132 

See  "Appeals" 

Review  of  decision  of  Industrial  Commission 136 

See  "Appeals" 

Risk,  must  be  incident  to  employment  (Part  I,  Sec.  4) 8 

Risks  of   the   street 106 

Risks  during  work  intervals 10 

Risks  of  personal   assault 101,  106 

Risks  incidental  to  the  employment  (Part  I,  Sec.  4) 8 

Rule  for  application  of  statute 68,  73 

Rules  adopted  by  Commission: 

Form  of  notices 176 

To  what  offices  notices  shall  be  sent 176 

Which  statements  under  oath 176 

Proof  of  average  daily  wages 176 

Notice  of  presentation  of  claim 177 

Witness  put  under  oath 177 

Claim  for  compensation 177 

Who  may  examine 177 

Who  may  inspect 178 

Secretary  shall  digest  the  evidence 178 

Medical  examination  of  claimants 178 

Order  in  dealing  with  claim ,. 178 

Reference  of  claim  to  medical  director 178 

Special  investigation  through  deputies 179 

Reference  of  all  communications  to  the  actuary 179 

Passing  upon  claim 179 

Action  upon  award  by  commissioner  or  deputy  commissioner 179 

Action  upon  report  of  arbitrators 180 

Hearing  judicial  but  not  formal 180 

Stenographer's  report  of  hearings , 180 

Requisites  to  application  for  review 180 

Docketing  of  papers 181 

Emploj^ees  receiving  or  disbursing  money  to  give  bond 181 

What  employers  and  what  employees  subject 181 

Rules  for  computing  weekly  wages 182 

Revision  of  award  for  reduction  of  earning  capacity 182 

Ruling  as  to  lien  for  physician's  services,  etc 188 

Time  for  making  periodical  payments 188 

Method  of  paying  compensation 188 

When  commuted  and  sued  for 188 

Paying  present  value  into  state  fund 184 

Methods  of  paying  compensation 185 

Commuted  value  demanded  of  insolvents 185 

Physician's  fees,  etc.,  need  not  be  insured 185 

Policies  of  companies  must  insure  all  entitled 186 

Condition  of  remitting  penalty  for  non-compliance 186 


258  GENERAL  INDEX 

[references  are  to  pages] 

Rules  adopted  by  Commission  (continued). 

Commission  to  supply  blanks 186 

Expense  accounts  of  commission 186 

Classifying  employments  of  a  single  employer 187 

How  interstate  and  foreign  commerce  employers  may  comply 187 

Hours   of   sessions 187 

When  physician's  bill  not  to  be  considered 187 

Employees  insured  in  state  fund 187 

Premiums  payable  to  state  fund 188 

How  disbursements  from  state  fund  made 188 

Monthly  session  to  consider  report  of  state  fund 188 

Form  of  state  fund  accounts 188 

Readjustment  of  premium  payroll  to  state  fund 189 

Time  for  paying  premiums  to  state  fund 189 

Repeal,  amendment  of  adoption  of  rules 189 

Subrogation  to  remedy  of  employees 189 

Rule  for  determining  what  is  Interstate  Commerce 42 

Rule  for  suit  against  third  party 189 

Rules,  power  to  make 164 

Rupture,  an  accident 99 


Sailors,  accidents  to 
See  "Longshoremen" 
See  "Operation  of  vessels" 

Salesmen    24,  25 

Salesman,  falling  on  stairs 82 

Salesman,  employed  in  manufacture  of  clothing 84,  85 

Salesman,  traveling    24 

Salesman  installing  machinery    24,  80 

Salesman  and  buyer  for  wholesaler 91 

Salvation   Army    98 

Schedule  of  Compensation 118-125 

loss  of  remaining  member 119 

temporary  total   disability   119 

temporary  partial   disability   119 

phalange,  loss  of  part 120 

tip    of   finger 120 

loss  of  finger    120 

loss  of  use  of  finger,  compensation  for 120,  121 

Schedule  of  specific  injuries 118 

Schools 19 

Scope  of  employment: 
See  "Arising  out  of,  etc." 

Scuffle  over  horses 101 

Seasonable  employments 117,  124 

Secretary,  powers  and  duties  of 154 

Self-insurance    54 

Septicaemia    108 

Servants,  domestic  18,  94 

Sessions  of  Industrial  Commission 153 

Settlement  of  suit  against  third  party 47 

Sharing  profits,  operation  of  vessels .'. 76 

Sheeting  work   78 

Shelter  from  rain 102 


GENERAL  INDEX  259 

[references  are  to  pages] 

Ships,  accidents  to  sailors: 
See  "Longshoremen" 
See  "Operation  of  vessels" 

Shore,  injury  on 88 

Short  cut  to  place  of  work 104 

Sister  and  parents  as  dependents 128 

Slippery  floor  causing  injury 108 

Sorting  refuse    77,  82 

Special  employer 15,  93 

Specific  compensation  shall  be  in  lieu  of  all  other 122,  123 

Stableman    85 

State,  as  an  employer 88,  92 

State  not  liable  beyond  premiums 61,  159 

State  employees    88,  89 

State  Insurance  Fund: 

appeals  by  employers 66 

administration  of   65 

.  compared  with  stock  and  mutual  companies 64 

coverage   57 

incomplete  protection   68 

violations  of  Labor  Law  covered 69 

release  from  payment  of  compensation 59 

release    of    employer 59 

readjustment   of   rates 60 

State  not  liable  beyond  premiums 61,  159 

assessments   61 

Immunity     62 

creation  of  State  Fund 159 

custody   of   funds 159 

payments  of  expenses  of 160 

surplus  and  reserve 159 

investment  of  .• 160 

classification  of  risks 161 

adjustment  of  premiums 161 

individual  grouping   161 

associations  for  accident  prevention 162 

inspection  of  plants  of  employers 166 

examination   by   Insurance   Department 1 66 

requirements  in  classifying  employments 162 

requirements  for   adjusting  rates 1 62 

payment    of   premiums 164 

collection    of    premiums 164 

withdrawal  of  employers 164 

assessments    after   withdrawal 165 

audit   of   payrolls 165 

falsification  of  payroll 165 

misrepresentation  to  obtain  insurance 165 

report  of  State  Insurance  Fund 166 

employer  cannot  appeal 137 

State  legislation  on  workmen's  compensation,  history  of 4 

Statutory  remedies  superseded 113 

Stenographic  report  of  proceedings 157 

Step    child    110 

Stock  company   insurance 64 

Stockholder  in  corporation  as  employee 81 

Storage  13,  14,  82,  83 

Storehouse  97 

Storeroom,  injury  in 83 


260  GENERAL  INDEX 

[references  are  to  pages] 

Stone  crusher  88 

Strain,  injury   from 99 

Street  railroads  may  be  engaged  in  interstate  commerce 43 

Street  risks    106 

Street  surface  railroads  4fl 

Strike-breaker,   assault   upon -. 104 

Subpoena    156 

Subsequent  accidents    124,  125 

Subway  construction   79 

reaching  street 79 

crossing   tracks    79 

injury  after   discharge 79 

attending  call  of  nature 79 

Subrogation  against  insurer 147 

Subrogation  in  action  against  third  persons 45,  141 

Subrogation  to  remedy  of  employees 45,  141 

rule  for   ." 189 

release  by  employee,  effect  of 142 

recovery  limited  to  amount  of  compensation 148 

(See  Part  I,  Sec.  24,  page  45) 

Suits  against  third  persons ". 45,  141 

rules  for    189 

See  "Negligence  of  Third  Persons" 

Surplus  and  reserve  of  State  Fund 159 

investment    of    160 

Suspension  of  death  benefits 129 

Switching  empty  cars   169 

Switching  intrastate  freight   42 


Tailor  working  at  home 85 

Taking  inventory    169 

Taking  poison  by  mistake 102 

Temporary  partial  disability 128 

Testing  watch    74 

Tetanus,  accidental    107 

Theatres    91 

Threshing  machine,  operation  of 97 

Time  of  beginning  or  stopping  work 10 

Tip  of  finger 120 

Tips,  when  included  in  "earnings" 109 

Toes,   loss   of 120 

Toilet,  injury  in 106 

Traction  engine,  operation  of 97 

Trade  risk,  basis  of  compensation  legislation  (Part  I,  Sec.  2) 7 

Transcript  of  minutes 157 

Traveling  salesmen  (Part  I,  Sec.  12) 24 

See  "Salesmen" 

Trench  cave-in    108 

Truck   drivers    14 

Trust  fund  created 140,  141 

Tuberculosis    107 

Typhoid  fever   108 


GENERAL  INDEX  261 

[referekces  are  to  pages] 

u 

Unconstitutionality  of  portion  of  act,  effect  of 170 

Undertaking  91 

Union  men,  assault  by 104 

Universities     19 

Unexplained  drowning 76 

Unfair  decision  reversed 184 

Unloading  vessel     76 

Unloading  wagon    86 

Unmarried  employee,  dependents  of 128 

Use,  loss  of   121 

Use,  loss  of,  question  of  fact 121 


Vehicles 86 

See  "Operation  of  Vehicles" 
Vessels,   operation   of 75 

See  "Operation  of  Vessels" 

Vessels  engaged  in  interstate  commerce 168 

Vessels,  repair    of    36,  75 

Vessels,  optional  remedy  of  employees 37 

Vessels  in   foreign  waters 36-38 

Vessels,  longshoreman  injured  on 77 

Vessels  of  foreign  states  and  countries  excluded 36,  75 

Violation  of  the  act,  penalties 5,  146,  165,  166 

Violations  of  Labor  Law: 

Employment  secured  by 95 

Injuries  caused  by 34,  54,  65 

State  Insurance  Fund  covers 69 

W 

Wages : 

basis  of  compensation 116 

seven    day    employees 116 

extra   employees    117 

seasonable   employments    117,  124 

determination  of,  question  of  fact 118 

of  minors,  increase  of 118,  129 

free  board  as 110 

free  rent   as    110 

defined    109 

tips    109 

percentage   of   winnings 109 

deduction   from  by   employer  prohibited 144 

Wagon,   workman   protecting 102 

Waiting  period    114 

Waiver  agreement   void 144 

Waiver  of  notice  of  injury  under  Liability  Act 208 

Waiver  of  penalty    146 

Walking  on  railroad  track 105 

Watch,    testing    105 

Watching  cargo     78 


262  GENERAL  INDEX 

[refebekces  are  to  pages] 

Watching  boats    78 

Watchman  on  new  construction  work 169 

Watchman    74,  87 

Watchman  struck  by  train 74 

Water,  injury   on    38,  97 

Water,  leaving  work  to  get  drink 103 

Wholesale   dealer    91 

Wholesaler  not  conducting  storehouse  for  pecuniary  gain 97 

Widow  and  children,  preferred   as   dependents 11 

Widow  and  children,  amount    of    compensation 11,  126 

Widower  must  be  an  actual  dependent 11,  126 

Wife,   common   law 127 

Wife,  marriage  subsequent  to  accident 126 

Wife  of  captain,   services   of 76 

WiUful  misconduct 112 

Winnings,  percentage  of ,. 109 

Withdrawal  of  employers  from  State  Fimd 164 

Witnesses : 

punishment  of   156 

fees  and  mileage  of 166 

Words  construed: 

See  "Definitions" 

Work,  reporting  for 102 

Work,  going  to  and  from 10,  79 

Work,  injured  while  preparing  for 102 

Work,  injuries  after   105 

Work,  interruptions  in  10 

Work,  intervals  for  meals,  etc 104,  106 

Work,  temporarily  doing  for  another  employer 103 

Work,  piece    97 

Work,  see  "Arising  out  of,  etc." 

Working  in  coal  mine 42 

Working  on  new  telegraph  line 169 

Workmen,  loaned  to  others 94 

Workmen,  who  are,  under  the  act 94 

See   "Employees" 

Workmen,  injured,  examination  of 181 

Workmen's  Compensation,  history  of    4 

Workmen's  Compensation  distinguished  from  other  liability 8 

Workmen's  Compensation  Commission    abolished    161 

Workmen's  Compensation  Insurance    61,  146,  147 

Workmen's  Compensation  Law,   annotated 78 

Workmen's  Compensation  Law  constitutional    4 

Workmen's  Compensation  Law,  application  of 78 


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